[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Proposed Rules]
[Pages 62004-62032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23825]



[[Page 62003]]

-----------------------------------------------------------------------

Part III





Department of Veterans Affairs





-----------------------------------------------------------------------



38 CFR Part 5



Special Ratings; Proposed Rule

Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / 
Proposed Rules

[[Page 62004]]


-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AL88


Special Ratings

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize 
and rewrite in plain language regulations relating to special ratings 
and ratings for health care eligibility only. These revisions are 
proposed as part of VA's rewrite and reorganization of all of its 
compensation and pension rules in a logical, claimant-focused, and 
user-friendly format. The intended effect of the proposed revisions is 
to assist claimants and VA personnel in locating and understanding 
these provisions.

DATES: Comments must be received by VA on or before December 16, 2008.

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-AL88--Special Ratings.'' 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: William F. Russo, Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420, (202) 273-9515. (This is not 
a toll free number).

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has 
established an Office of Regulation Policy and Management (ORPM) to 
provide centralized management and coordination of VA's rulemaking 
process. One of the major functions of this office is to oversee a 
Regulation Rewrite Project (the Project) to improve the clarity and 
consistency of existing VA regulations. The Project responds to a 
recommendation made in the October 2001 ``VA Claims Processing Task 
Force: Report to the Secretary of Veterans Affairs.'' The Task Force 
recommended that the compensation and pension regulations be rewritten 
and reorganized in order to improve VA's claims adjudication process. 
Therefore, the Project began its efforts by reviewing, reorganizing, 
and redrafting the content of the regulations in 38 CFR part 3 
governing the compensation and pension program of the Veterans Benefits 
Administration. These regulations are among the most difficult VA 
regulations for readers to understand and apply.
    Once rewritten, the proposed regulations will be published in 
several portions for public review and comment. This is one such 
portion. It includes proposed rules regarding special ratings. After 
review and consideration of public comments, final versions of these 
proposed regulations will ultimately be published in a new part 5 in 38 
CFR.

Outline

Overview of New Part 5 Organization

Overview of This Notice of Proposed Rulemaking

Table Comparing Current Part 3 Rules With Proposed Part 5 Rules

Content of Proposed Regulations

Special Monthly Compensation

5.320 Determining need for regular aid and attendance.
5.321 Additional compensation for veteran whose spouse needs regular 
aid and attendance.
5.322 Special monthly compensation--general information and 
definitions of disabilities.
5.323 Special monthly compensation under 38 U.S.C. 1114(k).
5.324 Special monthly compensation under 38 U.S.C. 1114(l).
5.325 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(l) and (m).
5.326 Special monthly compensation under 38 U.S.C. 1114(m).
5.327 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(m) and (n).
5.328 Special monthly compensation under 38 U.S.C. 1114(n).
5.329 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(n) and (o).
5.330 Special monthly compensation under 38 U.S.C. 1114(o).
5.331 Special monthly compensation under 38 U.S.C. 1114(p).
5.332 Additional allowance for regular aid and attendance under 38 
U.S.C. 1114(r)(1) or for a higher level of care under 38 U.S.C. 
1114(r)(2).
5.333 Special monthly compensation under 38 U.S.C. 1114(s).
5.334 Special monthly compensation tables.
5.335 Effective dates--Special monthly compensation under Sec. Sec.  
5.332 and 5.333.
5.336 Effective dates--additional compensation for regular aid and 
attendance payable for a veteran's spouse under Sec.  5.321.
5.337 Award of special monthly compensation based on the need for 
regular aid and attendance during period of hospitalization.

Tuberculosis

5.340 Pulmonary tuberculosis shown by X-ray in active service.
5.341 Presumptive service connection for tuberculous disease; 
wartime and service after December 31, 1946.
5.342 Initial grant following inactivity of tuberculosis.
5.343 Effect of diagnosis of active tuberculosis.
5.344 Determination of inactivity (complete arrest) of tuberculosis.
5.345 Changes from activity in pulmonary tuberculosis pension cases.
5.346 Tuberculosis and compensation under 38 U.S.C. 1114(q) and 
1156.
5.347 Continuance of a total disability rating for service-connected 
tuberculosis.

Injury or Death Due to Hospitalization or Treatment

5.350 Benefits under 38 U.S.C. 1151(a) for additional disability or 
death due to hospital care, medical or surgical treatment, 
examination, training and rehabilitation services, or compensated 
work therapy program.
5.351 Effective dates for awards of benefits under 38 U.S.C. 
1151(a).
5.352 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act compromises, settlements, and judgments entered 
after November 30, 1962.
5.353 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act administrative awards, compromises, settlements, and 
judgments finalized before December 1, 1962.

Ratings for Healthcare Eligibility Only

5.360 Service connection of dental conditions for treatment 
purposes.
5.361 Healthcare eligibility of persons administratively discharged 
under other-than-honorable conditions.
5.362 Presumption of service incurrence of active psychosis for 
purposes of hospital, nursing home, domiciliary, and medical care.
5.363 Determination of service connection for former members of the 
Armed Forces of Czechoslovakia or Poland.

Miscellaneous Service-Connection Regulations

5.365 Claims based on the effects of tobacco products.
5.366 Disability due to impaired hearing.
5.367 Civil service preference ratings.
5.368 Basic eligibility determinations: home loan and education 
benefits.

[[Page 62005]]

Endnote Regarding Amendatory Language

Paperwork Reduction Act

Regulatory Flexibility Act

Executive Order 12866

Unfunded Mandates

Catalog of Federal Domestic Assistance Numbers and Titles

List of Subjects in 38 CFR Part 5

Overview of New Part 5 Organization

    We plan to organize the new part 5 regulations so that most 
provisions governing a specific benefit are located in the same 
subpart, with general provisions pertaining to all compensation and 
pension benefits also grouped together. This organization will allow 
claimants, beneficiaries, and their representatives, as well as VA 
adjudicators, to find information relating to a specific benefit more 
quickly than the organization provided in current part 3.
    The first major subdivision would be ``Subpart A--General 
Provisions.'' It would include information regarding the scope of the 
regulations in new part 5, general definitions, and general policy 
provisions for this part. This subpart was published as proposed on 
March 31, 2006. See 71 FR 16464.
    ``Subpart B--Service Requirements for Veterans'' would include 
information regarding a veteran's military service, including the 
minimum service requirement, types of service, periods of war, and 
service evidence requirements. This subpart was published as proposed 
on January 30, 2004. See 69 FR 4820.
    ``Subpart C--Adjudicative Process, General'' would inform readers 
about types of claims and filing procedures, VA's duties, rights and 
responsibilities of claimants and beneficiaries, general evidence 
requirements, and effective dates for new awards, as well as revision 
of decisions and protection of VA ratings. This subpart will be 
published as three separate Notices of Proposed Rulemaking (NPRMs) due 
to its size. The first, concerning the duties of VA and the rights and 
responsibilities of claimants and beneficiaries, was published as 
proposed on May 10, 2005. See 70 FR 24680. The second, covering general 
evidence requirements, effective dates for awards, revision of 
decisions, and protection of VA ratings, was published as proposed on 
May 22, 2007. See 72 FR 28770. The third NPRM, concerning rules on 
filing VA benefits claims, was published as proposed on April 14, 2008. 
See 73 FR 20136.
    ``Subpart D--Dependents and Survivors'' would inform readers how VA 
determines whether an individual is a dependent or a survivor of a 
veteran. It would also provide the evidence requirements for these 
determinations. This subpart was published as proposed on September 20, 
2006. See 71 FR 55052.
    ``Subpart E--Claims for Service Connection and Disability 
Compensation'' would define service-connected compensation, including 
direct and secondary service connection. This subpart would inform 
readers how VA determines entitlement to service connection. The 
subpart would also contain those provisions governing presumptions 
related to service connection, rating principles, and effective dates, 
as well as several special ratings. This subpart will be published as 
three separate NPRMs due to its size. The first, concerning 
presumptions related to service connection, was published as proposed 
on July 27, 2004. See 69 FR 44614. The second, concerning special 
ratings, is the subject of this document.
    ``Subpart F--Nonservice-Connected Disability Pensions and Death 
Pensions'' would include information regarding the three types of 
nonservice-connected pension: Old-Law Pension, Section 306 Pension, and 
Improved Pension. This subpart would also include those provisions that 
state how to establish entitlement to Improved Pension, and the 
effective dates governing each pension. This subpart would be published 
in two separate NPRMs due to its size. The portion concerning Old-Law 
Pension, Section 306 Pension, and elections of Improved Pension was 
published as proposed on December 27, 2004. See 69 FR 77578. The 
portion concerning Improved Pension was published as proposed on 
September 26, 2007. See 72 FR 54776.
    ``Subpart G--Dependency and Indemnity Compensation, Accrued 
Benefits, and Special Rules Applicable Upon Death of a Beneficiary'' 
would contain regulations governing claims for dependency and indemnity 
compensation (DIC); accrued benefits; benefits awarded, but unpaid at 
death; and various special rules that apply to the disposition of VA 
benefits, or proceeds of VA benefits, when a beneficiary dies. This 
subpart would also include related definitions, effective-date rules, 
and rate-of-payment rules. This subpart was published as two separate 
NPRMs due to its size. The portion concerning accrued benefits, special 
rules applicable upon the death of a beneficiary, and several 
effective-date rules was published as proposed on October 1, 2004. See 
69 FR 59072. The portion concerning DIC benefits and general provisions 
relating to proof of death and service-connected cause of death was 
published as proposed on October 21, 2005. See 70 FR 61326.
    ``Subpart H--Special and Ancillary Benefits for Veterans, 
Dependents, and Survivors'' would pertain to special and ancillary 
benefits available, including benefits for children with various birth 
defects. This subpart was published as proposed on March 9, 2007. See 
72 FR 10860.
    ``Subpart I--Benefits for Certain Filipino Veterans and Survivors'' 
would pertain to the various benefits available to Filipino veterans 
and their survivors. This subpart was published as proposed on June 30, 
2006. See 71 FR 37790.
    ``Subpart J--Burial Benefits'' would pertain to burial allowances. 
This subpart was published as proposed on April 8, 2008. See 73 FR 
19021.
    ``Subpart K--Matters Affecting the Receipt of Benefits'' would 
contain provisions regarding bars to benefits, forfeiture of benefits, 
and renouncement of benefits. This subpart was published as proposed on 
May 31, 2006. See 71 FR 31056.
    ``Subpart L--Payments and Adjustments to Payments'' would include 
general rate-setting rules, several adjustment and resumption 
regulations, and election-of-benefit rules. This subpart will be 
published as two separate NPRMs due to its size. The portion concerning 
payments to beneficiaries who are eligible for more than one benefit 
was published as proposed on October 2, 2007. See 72 FR 56136.
    The final subpart, ``Subpart M--Apportionments to Dependents and 
Payments to Fiduciaries and Incarcerated Beneficiaries,'' would include 
regulations governing apportionments, benefits for incarcerated 
beneficiaries, and guardianship.
    Some of the regulations in this NPRM cross-reference other 
compensation and pension regulations. If those regulations have been 
published in this or earlier NPRMs for the Project, we cite the 
proposed part 5 section. We also include, in the relevant portion of 
the Supplementary Information, the Federal Register document citation 
(including the Regulation Identifier Number and Subject Heading) where 
a proposed part 5 section published in an earlier NPRM may be found. 
However, where a regulation proposed in this NPRM would cross-reference 
a proposed part 5 regulation that has not yet been published, we cite 
the current part 3 regulation that deals with the same subject matter. 
The current part 3 section we cite may differ from its eventual part 5 
counterpart in some respects, but this method will assist

[[Page 62006]]

readers in understanding these proposed regulations where no part 5 
counterpart has yet been published. If there is no part 3 counterpart 
to a proposed part 5 regulation that has not yet been published, we 
have inserted ``[regulation that will be published in a future Notice 
of Proposed Rulemaking]'' where the part 5 regulation citation would be 
placed.
    Because of its large size, proposed part 5 will be published in a 
number of NPRMs, such as this one. VA will not adopt any portion of 
part 5 as final until all of the NPRMs have been published for public 
comment.
    In connection with this rulemaking, VA will accept comments 
relating to a prior rulemaking issued as a part of the Project, if the 
matter being commented on relates to both rulemakings.

Overview of This Notice of Proposed Rulemaking

    This proposed rulemaking pertains to those regulations governing 
special ratings. These regulations would be contained in proposed 
Subpart E of new 38 CFR part 5. Although these regulations have been 
substantially restructured and rewritten for greater clarity and ease 
of use, most of the basic concepts contained in these proposed 
regulations are the same as in their existing counterparts in 38 CFR 
part 3. However, a few substantive changes are proposed, as are some 
regulations that do not have counterparts in 38 CFR part 3.

Table Comparing Current Part 3 Rules With Proposed Part 5 Rules

    The following table shows the relationship between the proposed 
regulations contained in this NPRM and the current regulations in part 
3:

------------------------------------------------------------------------
                                            Based in whole or in part on
   Proposed part 5  section or paragraph      38 CFR part 3 section or
                                                      paragraph
------------------------------------------------------------------------
5.320(a)..................................  3.351(b), 3.352(a) [first,
                                             fifth-seventh sentences].
5.320(b)..................................  3.352(a) [second-fourth
                                             sentences].
 
5.321(a)..................................  3.351(a)(2) and (b).
5.321(b)(1)-(3)...........................  3.351(c)(1)-(2).
5.321(c)..................................  3.351(c)(3).
 
5.322(a)..................................  New.
5.322(b), (c)(1)-(3)......................  3.350(a)(2)(i).
5.322(c)(4)...............................  3.350(a)(2)(i) (b) [sic].
5.322(d)..................................  3.350(c)(2).
5.322(e)..................................  3.350(d).
5.322(f)..................................  3.350(b)(2) [second
                                             sentence].
5.322(g)..................................  3.350(a)(4).
 
5.323(a)(1)-(8)...........................  3.350(a).
5.323(b)(1)...............................  3.350(a).
5.323(b)(2)...............................  3.350(a).
5.323(c)(1)...............................  New.
5.323(c)(2)...............................  3.350(a)(1)(i) [first
                                             sentence].
5.323(c)(3)(i)-(iii)......................  3.350(a)(1)(i) [second
                                             sentence].
5.323(c)(3)(iv)...........................  New.
5.323(c)(4)...............................  New.
5.323(c)(5)...............................  New.
5.323(c)(6)...............................  3.350(a)(1)(iii).
5.323(c)(7)...............................  3.350(a)(1)(iv).
5.323(d)(1)...............................  3.350(a)(3)(i).
5.323(d)(2)...............................  3.350(a)(3)(ii).
5.323(e)..................................  3.350(a)(5).
5.323(f)..................................  3.350(a)(6).
 
5.324 [introduction]......................  3.350(b).
5.324(a)..................................  3.350(b), (b)(1).
5.324(b)..................................  3.350(b), (b)(1).
5.324(c)..................................  3.350(b), (b)(2).
5.324(d)..................................  3.350(b), (b)(4).
5.324(e)..................................  3.350(b)(3).
 
5.325 [introduction]......................  3.350(f).
5.325(a)..................................  3.350(f)(1)(i).
5.325(b)..................................  3.350(f)(1)(iii).
5.325(c)..................................  3.350(f)(1)(vi).
5.325(d)..................................  3.350(f)(2)(i).
 
5.326 [introduction]......................  3.350(c)(1).
5.326(a)..................................  3.350(c)(1)(i).
5.326(b)..................................  3.350(c)(1)(ii).
5.326(c)..................................  3.350(f)(1)(ii).
5.326(d)..................................  3.350(f)(1)(iv).
5.326(e)..................................  3.350(c)(1)(iii).
5.326(f)..................................  3.350(f)(1)(viii).
5.326(g)..................................  3.350(c)(1)(iv).
5.326(h)..................................  3.350(f)(2)(ii).
5.326(i)..................................  3.350(c)(1)(v), (c)(3), and
                                             4.79 [last
                                            sentence].
 
5.327 [introduction]......................  3.350(f).
5.327(a)..................................  3.350(f)(1)(x).
5.327(b)..................................  3.350(f)(1)(v).
5.327(c)..................................  3.350(f)(1)(vii).
5.327(d)..................................  3.350(f)(1)(ix).
5.327(e)..................................  3.350(f)(2)(iii).
 
5.328.....................................  3.350(d) [introduction].
5.328(a)..................................  3.350(d)(1).
5.328(b)..................................  3.350(f)(1)(xi).
5.328(c)..................................  3.350(d)(2).
5.328(d)..................................  3.350(d) and (d)(3).
5.328(e)..................................  3.350(d)(4).
 
5.329.....................................  3.350(f), (f)(1)(xii).
 
5.330 [introduction]......................  3.350(e)(1).
5.330(a)..................................  3.350(e)(1)(i).
5.330(b)..................................  3.350(e)(1)(iii).
5.330(c)..................................  3.350(e)(1)(iv).
5.330(d)..................................  3.350(e)(2).
5.330(e)..................................  3.350(e)(1)(ii) and (e)(3).
5.331(a)..................................  3.350(f).
5.331(b)(1)...............................  3.350(f)(2)(iv).
5.331(b)(2)...............................  3.350(f)(2)(v).
5.331(b)(3)...............................  3.350(f)(2)(vi).
5.331(c)..................................  3.350(f)(2)(vii).
5.331(c)(1)...............................  3.350(f)(2)(vii) (A).
5.331(c)(2)...............................  3.350(f)(2)(vii) (B).
5.331(c)(3)...............................  3.350(f)(2)(vii) (C).
5.331(d)..................................  3.350(f)(3) and (f)(4)(i).
5.331(e)(1),(2)...........................  3.350(f)(4).
5.331(e)(3)...............................  3.350(f)(4)(ii).
5.331(f)..................................  3.350(f)(5).
 
5.332(a)..................................  3.350(h)(1) and (2).
5.332(b)..................................  3.350(h).
5.332(c)..................................  3.350(h) and 3.352(b).
5.332(c)(1)(i)............................  3.350(h)(2) and
                                             3.352(b)(1)(i).
5.332(c)(1)(ii)...........................  3.352(b)(1)(ii).
5.332(c)(1)(iii)..........................  3.352(b)(1)(iii).
5.332(c)(1)(iv)...........................  3.352(b)(1)(iii).
5.332(c)(2)...............................  3.352(b)(2) [first
                                            sentence].
5.332(c)(3)...............................  3.352(b)(2) [second
                                             sentence].
5.332(c)(4)...............................  3.352(b)(2) [third
                                            sentence].
5.332(c)(5)...............................  3.352(b)(3).
5.332(c)(6)...............................  3.352(b)(4).
 
5.333 [introduction]......................  3.350(i).
5.333(a)..................................  3.350(i)(1).
5.333(b)..................................  3.350(i)(2).
5.334.....................................  New.
5.335(a)..................................  3.401(a)(1).
5.335(b)..................................  3.401(a)(1).
 
5.336(a)(1)...............................  3.401(a)(3).
5.336(a)(2)...............................  3.401(a)(3).
5.336(b)..................................  3.501(b)(3).
 
5.337.....................................  3.401(a)(2).
 
5.340.....................................  3.370.
 
5.341.....................................  3.371.
 
5.342.....................................  3.372.
 
5.343.....................................  3.374.
 
5.344.....................................  3.375.
 
5.345.....................................  3.378.
 
5.346(a)..................................  3.959.
5.346(b)(1)(i)............................  3.350(g)(1).
5.346(b)(1)(ii)...........................  3.401(g).
5.346(b)(2)...............................  3.350(g)(2).
 
5.347.....................................  3.343(b).
 
5.350.....................................  3.361.
 
5.351.....................................  3.361(a)(2), 3.400(i).
 
5.352.....................................  3.362.
 
5.353.....................................  3.363.
 
5.360(a)..................................  New.
5.360(b)..................................  3.381(a).
5.360(c)(1)...............................  3.381(e)(1).

[[Page 62007]]

 
5.360(c)(2)...............................  3.381(e)(2).
5.360(c)(3)...............................  3.381(d)(5).
5.360(c)(4)...............................  3.381(d)(6).
5.360(d)(1)-(3)...........................  3.381(b).
5.360(d)(4)...............................  3.381(c) [first
                                            sentence].
5.360(e) [introduction]...................  3.381(c) [second
                                            sentence].
5.360(e)(1)...............................  3.381(d)(1).
5.360(e)(2)...............................  3.381(d)(2).
5.360(e)(3)...............................  3.381(d)(3).
5.360(e)(4)...............................  3.381(d)(4).
5.360(e)(5)...............................  3.381(e)(3).
5.360(e)(6)...............................  3.381(e)(4).
5.360(e)(7)...............................  3.381(f).
 
5.361(a)..................................  3.360(a).
5.361(b)..................................  3.360(c).
5.361(c)..................................  3.360(b).
 
5.362.....................................  New.
 
5.363.....................................  3.359.
 
5.365.....................................  3.300.
 
5.366.....................................  3.385.
 
5.367.....................................  3.357.
 
5.368.....................................  3.315(b), (c).
------------------------------------------------------------------------

    Readers who use this table to compare the proposed provisions with 
the existing regulatory provisions, and who observe a difference 
between them, should consult the text that appears later in this 
document for an explanation of significant changes in each regulation. 
Not every paragraph of every current part 3 section regarding the 
subject matter of this rulemaking is accounted for in the table. In 
some instances, other portions of the part 3 sections that are 
contained in these proposed regulations appear in subparts of part 5 
that are being published separately for public comment. For example, a 
reader might find a reference to paragraph (a) of a part 3 section in 
the table, but no reference to paragraph (b) of that section because 
paragraph (b) will be addressed in a separate NPRM. The table also does 
not include provisions from part 3 regulations that will not be carried 
forward to part 5. Such provisions are discussed specifically under the 
appropriate part 5 heading in this preamble. Readers are invited to 
comment on the proposed part 5 provisions and on our proposals to omit 
those part 3 provisions from part 5.

Content of Proposed Regulations

Special Monthly Compensation

5.320 Determining Need for Regular Aid and Attendance

    Proposed Sec.  5.320 is derived primarily from current Sec.  
3.352(a). Although Sec.  3.352(a) by its terms applies only to 
determinations of the need for regular aid and attendance under Sec.  
3.351(c)(3) (increased DIC based on need for aid and attendance), in 
practice VA applies Sec.  3.352(a) as the general criteria for 
determining the need for regular aid and attendance in every context 
for which benefits are premised on such a need and administered under 
part 3. This is reflected in part by the reference to the Sec.  
3.352(a) criteria in Sec.  3.351(c)(3), which applies to a veteran, 
spouse, surviving spouse, or parent, and in Sec.  3.350(b)(3), which 
refers to Sec.  3.352(a) for the criteria to determine whether a 
veteran qualifies for special monthly compensation (SMC) based on the 
need for regular aid and attendance. In part 5, we would explicitly 
make these criteria generally applicable to all determinations of the 
need for regular aid and attendance, and, in so doing, will simplify 
and clarify the criteria.
    Current Sec.  3.351(b) uses the term ``helpless'' to mean requiring 
``the regular aid and attendance of another person,'' but the Veterans' 
Housing Opportunity and Benefits Improvement Act of 2006 amended 
certain sections of title 38, United States Code, to replace the term 
``helpless'' with the term ``significantly disabled'' (and similar 
terminology) when describing veterans, dependents, or survivors who 
need regular aid and attendance benefits. See Public Law 109-233, sec. 
502, 120 Stat. 398, 415 (June 15, 2006). Despite the change in 
terminology, the Act did not make any substantive change to title 38. 
See Explanatory Statement on Amendment to Senate Bill, S. 1235, as 
amended, 152 Cong. Rec. H2976, H2978 (daily ed. May 22, 2006). The 
proposed part 5 criteria for needing regular aid and attendance, 
however, would not reference the statutory requirement that a person be 
``helpless'' or ``so significantly disabled'' as to regularly need aid 
and attendance. The statutory term serves in Sec.  3.352(a) as the 
basis for the application of the various criteria that can serve as the 
basis for a finding that an individual is in need of regular aid and 
attendance, which would be listed in proposed Sec.  5.320(a)(1)-(6). 
But those criteria clearly apply only if a person is disabled and, as a 
result, the reference to being ``so significantly disabled'' is 
superfluous. We would, instead, simply state that a person needs 
regular aid and attendance if that person is unable to perform the 
functions listed in paragraphs (a)(1)-(6).
    In addition, current Sec.  3.351(b) uses the term ``require'' 
rather than ``need'' regular aid and attendance. We propose to use 
``need'' in proposed part 5. The words ``need'' and ``require'' have 
identical meanings, but part 3 uses ``need'' more than 60 times when 
referring to regular aid and attendance, but uses ``require'' only five 
times. In the authorizing statutes, 38 U.S.C. 1114(l) uses the phrase 
``in need of regular aid and attendance'', while 38 U.S.C. 1115(1)(E) 
and 1502(b) use ``need or require the regular aid and attendance.'' The 
word ``need'' is perfectly clear, and more easily understood than 
``require'' or ``need or require,'' and using the word ``need'' will 
not result in any substantive difference between parts 3 and 5.
    We would also omit the phrase ``of another person.'' In current 
part 3, the phrase inconsistently appears after ``aid and attendance.'' 
It is in current Sec. Sec.  3.25(e) and 3.351(b), but not in Sec. Sec.  
3.350, 3.351(c), or 3.352. The statutes authorizing benefits based on 
needing ``regular aid and attendance'' do not consistently use the 
phrase ``of another person.'' Compare, e.g., 38 U.S.C. 1114(l), (m), 
(r) (not using ``of another person''), with 38 U.S.C. 1115(1)(E) (using 
``of another person''). All of the criteria for determining need for 
aid and attendance listed in Sec.  3.352, ``Criteria for determining 
aid and attendance and `permanently bedridden,''' concern tasks that 
must be done by someone other than the person needing aid and 
attendance. Therefore, the phrase ``of another person'' is unnecessary.
    In proposed Sec.  5.320(a) we would specifically note that the need 
for regular aid and attendance need not be permanent. There is no 
express statutory requirement that a person's need for regular aid and 
attendance is permanent in nature, and the proposed rule is consistent 
with the current regulation. Indeed, to impose a ``permanent'' 
requirement might conflict with 38 U.S.C. 1114(l), which distinguishes 
a veteran's need for regular aid and attendance from a veteran being 
``permanently bedridden,'' as further explained later in this NPRM.
    As noted above, proposed Sec.  5.320(a)(1)-(6) would set forth the 
basic criteria to establish the need for regular aid and attendance, 
which are derived from current Sec.  3.352(a). The language describing 
the criteria in the proposed paragraph is plainer and more modern than 
that of the current regulation, but there are no substantive 
differences. In particular, current

[[Page 62008]]

Sec.  3.352(a), ``Basic criteria for regular aid and attendance and 
permanently bedridden,'' specifies that ``physical or mental'' 
incapacity necessitates assistance in protecting ``the claimant from 
hazards or dangers incident to his or her daily environment.'' In the 
proposed rule, we have omitted the phrase ``physical or mental.'' The 
term ``incapacity'' needs no such qualification because the only 
possible incapacitating causes of a person's inability to avoid hazards 
or dangers are physical or mental. Thus, the phrase ``physical or 
mental'' is superfluous.
    Proposed Sec.  5.320(b) reflects VA's policy to consider a person 
who is bedridden to also be a person who needs regular aid and 
attendance. Although the title of current Sec.  3.352 and the caption 
to Sec.  3.352(a) refer to the term ``permanently bedridden,'' the text 
of Sec.  3.352(a) describes ``bedridden'' status without such 
qualification. Indeed, 38 U.S.C. 1114(l) contains the sole statutory 
requirement that a veteran be ``permanently bedridden,'' stating that a 
veteran is eligible for special monthly compensation at the rate set 
forth in section 1114(l) if the veteran ``is permanently bedridden or 
with such significant disabilities as to be in need of regular aid and 
attendance.'' That requirement would be covered by Sec.  5.324(d).
    Thus, proposed Sec.  5.320(b) implements the general statutory 
criterion, appearing in several places in title 38, United States Code, 
that a person who is so significantly disabled as to need regular aid 
and attendance is entitled to certain VA benefits. It is reasonable to 
assume that a person who is bedridden due to disability has such need. 
Therefore, proposed part 5, like part 3, would consider a person who is 
bedridden to be one who needs regular aid and attendance.
    Proposed Sec.  5.320(b) is based on the rules governing 
``bedridden'' determinations under current Sec.  3.352(a). Current 
Sec.  3.352(a) includes a statement that having ``voluntarily taken to 
bed'' would not support a finding of bedridden status. We propose to 
reword this requirement by stating that the person ``must remain in bed 
due to his or her disability or disabilities,'' thus eliminating the 
possibility that voluntary bed rest could qualify. We would add that 
the bed rest must be based on medical necessity, but clarify that such 
necessity cannot be for convalescence or cure. These statements are 
consistent with the current rule and will not lead to a different 
result in cases adjudicated under part 5.
    The last two sentences of Sec.  3.352(a) state, ``Determinations 
that the veteran is so helpless, [sic] as to be in need of regular aid 
and attendance will not be based solely upon an opinion that the 
claimant's condition is such as would require him or her to be in bed. 
They must be based on the actual requirement of personal assistance 
from others.'' Because the proposed regulation makes clear that a 
person who is bedridden also is in need of aid and attendance, we will 
not repeat these sentences in part 5.

5.321 Additional Compensation for Veteran Whose Spouse Needs Regular 
Aid and Attendance

    Current Sec.  3.351(a)(2) states that a veteran in receipt of 
disability compensation may be eligible for increased compensation if 
he or she has a spouse who is in need of regular aid and attendance. 
The authorizing statute, 38 U.S.C. 1115, requires a veteran to be 
entitled to disability compensation and to have a disability rating of 
not less than 30 percent to qualify for this additional benefit. We 
propose to include this language in Sec.  5.321(a) because it reflects 
the current statutory criteria and will help readers locate the 
eligibility requirements.
    Current Sec.  3.351(c) contains the general criteria for 
determining whether a dependent spouse needs regular aid and 
attendance. We propose to reorganize these criteria in proposed Sec.  
5.321(b) and (c). Proposed paragraph (b) would be titled ``Automatic 
eligibility''; it would explain that a spouse would be found to be in 
need of regular aid and attendance if he or she is blind or has a 
serious visual impairment or is a patient in a nursing home due to 
mental or physical incapacity. Proposed paragraph (c) would be entitled 
``Factual need''; it would state the principle found in current 
paragraph (c)(3) that a spouse will be considered in need of regular 
aid and attendance if a factual need is shown under proposed Sec.  
5.320.
    Under current Sec.  3.351(c), a ``spouse * * * will be considered 
in need of regular aid and attendance if he or she: (1) Is blind or so 
nearly blind as to have corrected visual acuity of 5/200 or less, in 
both eyes, or concentric contraction of the visual field to 5 degrees 
or less.'' Although not stated explicitly, it is long-standing VA 
practice to require that the concentric contraction be bilateral. The 
1945 Schedule for Rating Disabilities states, ``With visual acuity 5/
200 or less or the visual field reduced to 5 degrees contraction, in 
either event in both eyes, the question of entitlement on account of 
regular aid and attendance will be determined on the facts in the 
individual case.'' 1945 Rating Schedule, page 53-54, para.10 (4/1/1946) 
(emphasis added); see also 38 CFR 4.79 (substantially the same). 
Requiring bilateral concentric contraction of the visual field to 5 
degrees bilaterally implements the ``so nearly blind'' criterion of 
need for regular aid and attendance in the authorizing statute. See 38 
U.S.C. 1115(1)(E). The current VA rating schedule rates unilateral 
concentric contraction of the visual field to 5 degrees as 30 percent 
disabling; bilateral concentric contraction of the visual field to 5 
degrees is rated 100 percent disabling. 38 CFR 4.84a, diagnostic code 
6080 (2007). These rating criteria demonstrate that unilateral 
contraction of the visual field to 5 degrees cannot rationally be 
considered ``so nearly blind'' as to need regular aid and attendance 
within the meaning of 38 U.S.C. 1115(1)(E). Although Sec.  4.79 and 
diagnostic code 6080 apply to rating the vision of veterans, there is 
no rational basis to construe the criterion ``so nearly blind'' 
differently for veterans and for their spouses. Hence, we propose to 
clarify that the concentric contraction criterion applies to both eyes. 
Stating the visual field criterion of the need as bilateral in proposed 
Sec.  5.321(b) merely states current VA practice explicitly. It makes 
no substantive change.
    We propose to cite 38 U.S.C. 1115 as the authority for proposed 
Sec.  5.321, to show the actual authority for the criteria for need of 
a spouse for regular aid and attendance, especially regarding the 
nursing home and the blindness criteria. The authority citation for 
current Sec.  3.351(c), is stated as 38 U.S.C. 1502(b), but this is 
incomplete. Section 1502(b) is the authority for those criteria in the 
context of pension. Section 1115(1)(E) authorizes special monthly 
compensation to a veteran with a spouse who needs regular aid and 
attendance. Hence, we have cited section 1115 as authority for proposed 
Sec.  5.321.
    The criteria to establish a dependent spouse's need for regular aid 
and attendance for purposes of a veteran's entitlement to additional 
compensation, set forth in 38 U.S.C. 1115(1)(E), include that the 
spouse be ``blind, or so nearly blind or significantly disabled as to 
need or require the regular aid and attendance of another person.'' 
However, the implementing regulation, 38 CFR Sec.  3.351(c)(1), defines 
``blind or so nearly blind'' as ``to have corrected visual acuity of 5/
200 or less, in both eyes, or concentric contraction of the visual 
field to 5 degrees or less.'' These criteria are similar to the 
criteria in 38 U.S.C. 1114(l), which provides special monthly 
compensation to a veteran with such visual disability.

[[Page 62009]]

    We note that it has been VA's longstanding practice to apply these 
criteria. The ``Veterans Disability Compensation and Survivor Benefits 
Act of 1976,'' Public Law 94-433, sec. 102, 90 Stat. 1375 (Sep. 30, 
1976), authorized VA to provide additional compensation to veterans 
whose spouses needed regular aid and attendance, and that legislation 
was the source of what is now 38 U.S.C. 1115(1)(E). In 1976, VA amended 
Sec.  3.351(a) to authorize such additional compensation. 41 FR 55872, 
55874 (Dec. 23, 1976); VA Transmittal Sheet 617 (Oct. 1, 1967). 
However, the criteria for blindness, 5/200 visual acuity or 5 degrees 
concentric contraction of the visual field, remained unchanged. In 
light of VA's consistent, long-standing use of these criteria in this 
context, we propose to use the criteria in Sec.  5.321.
    In promulgating Sec.  3.351(c)(1), VA adopted these more specific 
criteria, rather than the vague and difficult-to-apply criteria in 38 
U.S.C. 1115(1)(E), because they are more objective and easier to apply. 
Moreover, this definition of ``blind or so nearly blind'' does not 
limit the veteran's entitlement to additional compensation under 
section 1115(1)(E), because Sec.  5.321(c) allows the spouse to be 
considered in need of regular aid and attendance based on the facts in 
the individual case, regardless of his or her vision. This provision 
implements the language in 38 U.S.C. 1115(1)(E) that authorizes VA to 
pay such additional compensation when the veteran's spouse is ``so * * 
* significantly disabled as to need or require the regular aid and 
attendance of another person.''

5.322 Special Monthly Compensation--General Information and Definitions 
of Disabilities

    Proposed Sec.  5.322 would define disabilities that establish 
entitlement to SMC under the sections that follow that are not defined 
in those sections. Proposed paragraph (a) states that SMC is available 
for veterans who need regular aid and attendance, are bedridden, suffer 
certain service-connected disabilities or combinations of disabilities 
(considering also certain nonservice-connected disabilities in 
determining entitlement to certain SMC rates), or have a spouse who 
needs regular aid and attendance. The paragraph identifies by cross 
reference the regulations that address the potential contribution of a 
nonservice-connected disability to entitlement to SMC. This paragraph 
also informs the user where and how to find the monetary rates of SMC.
    Proposed paragraphs (b) through (g) would consolidate principles 
that apply to establishing particular levels of compensation throughout 
current Sec.  3.350. By consolidating these principles in proposed 
Sec.  5.322 and, thereafter, referencing the particular paragraph where 
applicable, it will be easier for readers to find specific rules.
    Title 38, United States Code, provides SMC for ``anatomical loss or 
loss of use of'' certain body parts. 38 U.S.C. 1114(k)-(p). Current 
Sec.  3.350 variously uses the phrases ``anatomical loss or loss of use 
[of the named body part]'' and ``loss or loss of use [of the named body 
part].'' These phrases mean the same thing. Where Sec.  3.350 uses 
``loss of [a named body part]'', as contrasted with ``loss of use of [a 
named body part],'' ``loss of'' means anatomical loss, consistent with 
their statutory derivation. Compare, e.g., 38 U.S.C. 1114(k) 
(``anatomical loss or loss of use of one or more creative organs'') 
with Sec.  3.350(a)(1)(i) (``Loss of a creative organ will be shown by 
acquired absence of one or both testicles * * * ovaries or other 
creative organ''). For consistency within part 5, we propose to use 
``anatomical loss or loss of use [of the named body part]'' and 
``anatomical loss [of the named body part]'' throughout part 5.
    We propose to define the loss of use of a hand or a foot at 
proposed Sec.  5.322 paragraphs (b) and (c), respectively. These 
definitions are derived from current Sec.  3.350(a)(2). Current Sec.  
3.350(a)(2)(i)(a) [sic] refers to ``complete ankylosis of two major 
joints of an extremity,'' but does not define ``major joints.'' VA has 
defined the major joints in 38 CFR 4.45(f), and we propose to 
incorporate this definition into paragraphs (b) and (c) regarding the 
upper and lower extremity, respectively, as an aid to readers. Current 
Sec.  3.350(a)(2)(i)(a) [sic] also refers to ``[e]xtremely unfavorable 
complete ankylosis of the knee'' without defining this term. VA has 
defined extremely unfavorable ankylosis of the knee in 38 4.71a, 
Diagnostic Code 5256, and we propose to incorporate this definition 
into paragraph (c)(1) as an aid to readers.
    Current Sec.  3.350(a)(2)(i) states the amount of function of a 
hand or foot of which there is loss of use as follows: ``Loss of use of 
a hand or a foot will be held to exist when no effective function 
remains other than that which would be equally well served by an 
amputation stump * * * with use of a suitable prosthetic appliance.'' 
This means the function of the hand or foot is less than or equal to 
the function of a prosthesis attached to the amputation stump. Proposed 
Sec.  5.322(b) and (c) have restated the extent of function that 
qualifies as loss of use of a hand or foot, respectively, as 
``functions no better than a prosthesis would function if attached to 
the [arm or leg] at a point of amputation below the [elbow or knee].'' 
``[F]unctions no better than'' means the same thing as ``no effective 
function remains other than that which would be equally well served 
by.'' No substantive change is intended.
    Proposed Sec.  5.322(d) is based on current Sec.  3.350(c)(2). The 
first sentence of current Sec.  3.350(c)(2) states that in determining 
whether there is natural elbow or knee action for purposes of Sec.  
3.350(c)(1)(ii) and (iii), VA will consider whether use of the proper 
prosthetic appliance requires natural use of the joint or whether 
necessary motion is otherwise controlled, in that the muscles affecting 
joint motion, if not already atrophied, will become so. In proposed 
Sec.  5.322(d), we would explain the effect of VA's consideration of 
whether the veteran is able to use a prosthesis that requires the 
natural use of the elbow or knee joint. The regulation explains that 
natural elbow or knee action is prevented when a prosthesis is in place 
if the veteran is unable to use a prosthesis that requires the natural 
use of the elbow or knee joint, or if the veteran is unable to move 
such a joint, as in complete ankylosis or complete paralysis. In order 
to simplify the rule, we propose not to repeat that VA will consider 
whether when using a proper prosthesis necessary motion is controlled 
by means other than natural use of the joint so that the muscles 
affecting joint motion, if not already atrophied, will become so. This 
language is not contained in 38 U.S.C. 1114 and does not aid in 
determining whether use of a prosthesis prevents natural elbow or knee 
action with a prosthesis in place.
    Current Sec.  3.350(c)(2) refers to ``no movement in the joint, as 
in ankylosis or complete paralysis.'' In proposed Sec.  5.322(d), we 
have inserted the word ``complete'' before ``ankylosis'' to clarify the 
intent of the current rule that the ankylosis must be complete.
    Proposed Sec.  5.322(e) is derived from current Sec.  3.350(d). VA 
will consider a veteran prevented from wearing a prosthesis due to 
amputation of an extremity (arm or leg) near the shoulder or hip if the 
anatomical loss prevents the use of a prosthesis, and reamputation at a 
higher level that permits the use of a prosthesis is not possible. If a 
prosthesis cannot be worn at the present level of amputation but could 
be worn if there were a reamputation at a higher level, VA will

[[Page 62010]]

consider the veteran not to have an anatomical loss of the extremity 
(arm or leg) so near the shoulder or hip as to qualify for SMC under 38 
U.S.C. 1114(n). Instead, VA will consider the veteran eligible only for 
SMC based on anatomical loss or loss of use of the arm at a level, or 
with complications, preventing natural elbow action with a prosthesis 
in place.
    We note that, like current Sec.  3.350(d), Sec.  3.350(f) requires 
anatomical loss of the leg or arm so near the hip or shoulder as to 
prevent the use of prosthetic appliance. We propose to make Sec.  5.322 
applicable to the part 5 counterparts to these provisions as well, 
instead of limiting its application to the counterparts of Sec.  
3.350(d), in an effort to ensure consistent use and application of 
terminology and promote consistency in VA decisionmaking.
    Proposed Sec.  5.322(f) is consistent with the second sentence of 
current Sec.  3.350(b)(2). The rule bars payment of SMC to a veteran 
who has actual visual acuity better than 5/200 but is nevertheless 
assigned a disability rating based on visual acuity of 5/200. The 
rating schedule for impaired visual acuity, 38 CFR 4.84a, Table V, 
provides for rating based on impaired visual acuity of 5/200 to 
veterans with impaired visual acuity ranging between 5/200 and more 
than 10/200. See 38 CFR 4.83. However, SMC under 38 U.S.C. 1114 is 
available only to a veteran with visual acuity of 5/200 or less. 
Therefore, proposed Sec.  5.322(f), like current Sec.  3.350(b)(2), 
requires adjudicators to ascertain that a veteran in receipt of 
disability compensation based on visual acuity of 5/200 actually 
suffers from impaired visual acuity of 5/200 or less.
    We propose to include the definition of loss of use or blindness of 
an eye, having only light perception, at proposed Sec.  5.322(g). This 
definition is derived from current Sec.  3.350(a)(4). We propose to 
restate ``considered of negligible utility'' contained in current Sec.  
3.350(a)(4) as ``considered insignificant usefulness of sight'' in 
Sec.  5.322(g). Readers might misinterpret ``considered of negligible 
utility'' in the current regulation as meaning that a report showing 
visual acuity difficulties at distances less than 3 feet would make the 
result of the visual examination not useful in determining entitlement 
to SMC. The words ``negligible utility'' means insignificant usefulness 
of sight. The proposed restatement will make clear that the regulation 
refers to the disabling nature of a veteran's visual acuity and not to 
the evidentiary weight of a visual examination report.

5.323 Special Monthly Compensation Under 38 U.S.C. 1114(k)

    Proposed Sec.  5.323 is derived from current Sec.  3.350(a). The 
proposed regulation would be titled ``Special monthly compensation 
under 38 U.S.C. 1114(k).''
    In Sec.  5.323(a)(8), we have clarified that treatment of breast 
tissue with radiation does not include diagnostic procedures that 
require the use of radiation. We do not believe that Congress intended 
to include diagnostic procedures such as a mammogram or other x-ray 
examination as a basis for compensation under 38 U.S.C. 1114(k), 
because such examinations are routinely performed.
    Proposed Sec.  5.323(b) is derived from the remaining three 
sentences in current Sec.  3.350(a).
    Proposed Sec.  5.323(c) is derived from current Sec.  3.350(a)(1). 
Proposed Sec.  5.323(c)(1) defines a ``creative organ'' as an organ 
directly involved in reproduction. In VAOPGCPREC 2-2000, 65 FR 33422 
(May 23, 2000), VA's General Counsel noted that the term ``creative 
organ'' is not defined in 38 U.S.C. 1114(k), nor in any other provision 
of title 38, United States Code. It is unique to section 1114(k) and is 
used in current Sec.  3.350(a)(1) without definition. After examining 
the issue, the General Counsel determined that by using the term 
``creative organ'' Congress meant procreative, or reproductive, organs. 
The proposed definition is consistent with VAOPGCPREC 2-2000.
    Proposed Sec.  5.323(c)(2) restates the first sentence of current 
Sec.  3.350(a)(1)(i). The second sentence of current Sec.  
3.350(a)(1)(i) is restated in proposed Sec.  5.323(c)(3)(i) through 
(iii).
    Current 38 CFR 3.350(a)(1)(i)(c) states that loss of use of a 
creative organ may be shown ``when a biopsy, recommended by a board 
including a genitourologist and accepted by the veteran, establishes 
the absence of spermatozoa.'' We propose to use somewhat different 
language in Sec.  5.323(c)(3)(iii) as follows: ``Absence of spermatozoa 
proven by biopsy performed with the informed consent of the veteran.'' 
We note that the reference to ``a board'' in the current rule relates 
to VA's former procedure of having a board of three VA employees 
(including a physician) adjudicate claims. Because this is no longer 
VA's procedure, and because any physician or VA adjudicator may order a 
biopsy, we propose not to include that reference in Sec.  
5.323(c)(3)(iii). The phrase ``accepted by the veteran'' might be 
misconstrued to mean that a veteran may accept or reject biopsy 
results. The intent of Sec.  3.350(a)(1)(i)(c) was to clarify that 
undergoing a biopsy is voluntary and requires the veteran's informed 
consent.
    Proposed Sec.  5.323(c)(3)(iv) is a new provision that states that 
loss of use of a creative organ exists when medical evidence shows 
that, due to injury or disease, reproduction is not possible without 
medical intervention. Although essentially the definition of loss of 
use, this provision is based on VA's long-standing policy of awarding 
SMC if the medical evidence of record shows the loss of erectile power 
secondary to a disease process such as diabetes or multiple sclerosis 
in a male veteran or a condition of the reproductive tract, such as 
retrograde ejaculation or spermatozoa dumping into the bladder in a 
male veteran or the removal of a fallopian tube in a female veteran, 
that results in the loss of use of a creative organ.
    We also propose to include in Sec.  5.323(c)(3)(iv)(A) a statement 
reflecting long-standing VA policy that would allow for the award of 
SMC under 38 U.S.C. 1114(k) for the anatomical loss or loss of use of a 
creative organ even when one paired creative organ is capable of 
reproduction and the other is not. Both 38 U.S.C. 1114(k) and 38 CFR 
3.350(a) are silent regarding this type of medical condition. Adding 
this rule to the proposed regulation is beneficial to veterans.
    In Sec.  5.323(c)(4), we propose to state that payment of SMC would 
be proper under 38 U.S.C. 1114(k) for loss of use of a creative organ 
even in instances when a veteran uses prescription medications or 
mechanical devices to treat erectile dysfunction. Veterans should not 
be prevented from receiving SMC when they are receiving treatment that 
corrects an otherwise compensable condition to some degree, 
particularly since the improvement in the condition may only be partial 
and because the loss of use may return when the treatment is suspended.
    In Sec.  5.323(c)(5), we propose to state clearly that SMC under 38 
U.S.C. 1114(k) would be payable for a service-connected anatomical loss 
of a creative organ even if it is preceded by a nonservice-connected 
loss of use of that same organ. In addition, in proposed Sec.  
5.323(c)(5)(i) through (iv), we have included examples illustrating 
this principle. SMC should be granted even if the veteran was first 
unable to procreate for nonservice-connected reasons. Congress has 
provided two bases for SMC, anatomical loss or loss of use. 
Compensation for service-connected anatomical loss is authorized even 
though there was a preexisting,

[[Page 62011]]

nonservice-connected loss of use. See VAOPGCPREC 5-89, 54 FR 38033 
(Sept. 14, 1989). According to the legislative history of 38 U.S.C. 
1114(k), the purpose of SMC for anatomical loss or loss of use of a 
creative organ is to account for psychological factors as well as the 
loss of physical integrity. See id. Even where a veteran has previously 
suffered the anatomical loss of certain creative organs that results in 
the loss of use of the remaining creative organs, the psychological 
impact and the loss of physical integrity resulting from the later 
anatomical loss of one of the remaining organs cannot be ignored. An 
award of SMC under these circumstances is consistent with the terms of 
the statute and precedent opinions by VA's General Counsel. See 
VAOPGCPREC 93-90, 56 FR 1220 (Jan. 11, 1991).
    Proposed Sec.  5.323(c)(6) and (7) are derived from current Sec.  
3.350(a)(1)(iii) and (iv) respectively. We propose not to repeat the 
specific language from Sec.  3.350(a)(1)(ii) in part 5. Current Sec.  
3.350(a)(1)(ii) addresses the issue of establishing service connection 
for ``loss or loss of use'' of a creative organ resulting from wounds 
or other trauma sustained in service or resulting from operations in 
service for the relief of other conditions for which the creative organ 
becomes incidentally involved. This provision is redundant of the basic 
principles for establishing service connection for a disability, which 
are contained in current Sec.  3.303 and which the eventual part 5 
counterpart to that regulation will address.
    Current 38 CFR 3.350(a)(1)(iv) states:

    Atrophy resulting from mumps followed by orchitis in service is 
service connected. Since atrophy is usually perceptible within 1 to 
6 months after infection subsides, an examination more than 6 months 
after the subsidence of orchitis demonstrating a normal 
genitourinary system will be considered in determining rebuttal of 
service incurrence of atrophy later demonstrated. Mumps not followed 
by orchitis in service will not suffice as the antecedent cause of 
subsequent atrophy for the purpose of authorizing the benefit.

    In proposed Sec.  5.323(c)(7), we explicitly state the presumption 
implicit in the current rule, Sec.  3.350(a)(1)(iv), by using the word 
``presumed.'' We also propose not to repeat the third sentence of Sec.  
3.350(a)(1)(iv) because it is redundant.
    In proposed Sec.  5.323(d), we would define loss of use of the 
buttocks. This definition is derived from current Sec.  3.350(a)(3).
    In proposed Sec.  5.323(e) and (f), we would define deafness and 
aphonia. These definitions are derived from current Sec.  3.350(a)(5) 
and (6), respectively.

5.324 Special Monthly Compensation under 38 U.S.C. 1114(l)

    Proposed Sec.  5.324 is derived from current Sec.  3.350(b). (Note 
that the part 5 counterpart to the second sentence of current Sec.  
3.350(b)(2) is contained at proposed Sec.  5.322(f), discussed above.)
    In proposed Sec.  5.324(a) and (b) we refer only to hands and feet, 
not to ``extremities.'' Although current Sec.  3.350(b)(1), refers to 
loss of use of an extremity, the context clearly indicates that 
``extremity'' refers only to a hand or foot. Section 3.350(a) only 
discusses the loss of use of hands or feet and current Sec.  
3.350(a)(2), which is referred to in Sec.  3.350(b)(1), only pertains 
to loss of use of a hand or foot.
    Section 1114(l) of title 38 of the United States Code provides for 
special monthly compensation (SMC) if a veteran is ``permanently 
bedridden.'' Current Sec.  3.350(b)(4) implements this rule by 
referring the reader to the criteria in current Sec.  3.352(a); 
however, but for its title, Sec.  3.352(a) defines ``bedridden'' 
without requiring permanence. It makes sense to define ``permanently 
bedridden'' in proposed Sec.  5.324, among the criteria for the benefit 
authorized by section 1114(l), because that is the only statute that 
contains such a criterion.
    For proposed Sec.  5.324, we would adapt the language of other 
current part 3 regulations that require permanence of a condition as a 
criterion of entitlement to a benefit. Part 3 contains three sections 
that characterize permanence of a condition. Section 3.350(i)(2) states 
that a veteran is permanently housebound because of service-connected 
disability or disabilities when he or she ``is substantially confined 
as a direct result of service-connected disabilities to his or her 
dwelling and the immediate premises or, if institutionalized, to the 
ward or clinical areas, and it is reasonably certain that the 
disability or disabilities and resultant confinement will continue 
throughout his or her lifetime.'' Section 3.351(d)(2), (e), and (f) 
state requirements for Improved Disability Pension, DIC, and Improved 
Death Pension, respectively, in substantially the same language.
    Section 3.340(b) states, ``Permanence of total disability will be 
taken to exist when such impairment is reasonably certain to continue 
throughout the life of the disabled person. * * * [B]ecoming 
permanently * * * bedridden constitutes permanent total disability.'' 
In Sec.  3.340(b), VA explicitly equates ``permanently bedridden'' with 
``permanence of total disability.'' In each of these sections, 
permanence is characterized by the continuance of the condition 
described throughout the life of the person concerned.
    Proposed Sec.  5.324(d) would authorize special monthly 
compensation to a veteran whose service-connected disability or 
disabilities require him or her to remain in bed, ``and it is 
reasonably certain that the confinement to bed will continue throughout 
his or her lifetime.'' This definition is simple, easy to apply, and 
consistent with VA's definitions of permanence in other similar 
regulations.
    Paragraphs (d) and (e) of proposed Sec.  5.324 are derived from 
current Sec.  3.350(b)(4) and (3), respectively. Though this reverses 
the order of the ``Need for aid and attendance'' and the ``Permanently 
bedridden'' paragraphs in Sec.  3.350, we have chosen to follow the 
sequence of these criteria in section 1114(l). Unless the veteran would 
be entitled to an additional allowance under 38 U.S.C. 1114(r) (see 
Sec.  5.332), it is more favorable to the veteran to base a grant of 
SMC under 38 U.S.C. 1114(l) on permanently bedridden status rather than 
the need for regular aid and attendance because SMC based on the need 
for regular aid and attendance might be reduced during hospitalization 
(see Sec.  3.552). In the current regulation, this information is 
contained in Sec.  3.350(b)(4), which pertains to permanently bedridden 
status. However, we provide the information to instruct VA personnel to 
consider whether a veteran is permanently bedridden if the veteran 
meets the requirements of the need for regular aid and attendance. We 
anticipate that it will be more helpful to VA personnel and other 
readers to place this information in proposed Sec.  5.324(e), which 
pertains to the need for regular aid and attendance. Furthermore, we 
have made the rule mandatory by changing ``should'' to ``will,'' to 
avoid confusion about whether or when to apply it.

5.325 Special Monthly Compensation at the Intermediate Rate Between 38 
U.S.C. 1114(l) and (m)

    Proposed Sec.  5.325 is derived from those provisions in current 
Sec.  3.350(f)--specifically Sec.  3.350(f)(1)(i), (iii), and (vi) and 
Sec.  3.350(f)(2)(i)--that provide for entitlement to SMC at the 
intermediate rate between the rates established under 38 U.S.C. 1114(l) 
and (m). The statutory authority for Sec.  5.325 would be 38 U.S.C. 
1114(p). The introductory paragraph of proposed Sec.  5.325 clarifies 
current Sec.  3.350(f) as it pertains to rounding to the nearest dollar 
the intermediate rate between 38 U.S.C. 1114(l) and (m). The

[[Page 62012]]

current rule, Sec.  3.350(f), requires VA to round ``to the nearest 
dollar.'' We propose to clarify the rule so that it requires VA to 
round ``down to the next lower dollar.'' This accords with the 
statutory requirement to round ``down to the nearest dollar.'' 38 
U.S.C. 1114(p). We have clarified the same point in Sec. Sec.  5.327, 
5.329, and 5.331, which relate to other SMC awards.
    Proposed Sec.  5.325(d) is based on current Sec.  3.350(f)(2)(i). 
We propose to add concentric contraction of the visual field reduced to 
5 degrees or less as an equivalent alternative to 5/200 visual acuity 
contained in the current regulation. Current Sec.  3.350(b)(2) provides 
the basis for treating visual acuity of 5/200 and a concentric 
contraction reduced to 5 degrees or less as equally disabling. Because 
the provisions of Sec.  3.350 will be divided in part 5, we propose to 
apply this principle wherever it is applicable in the proposed 
regulations.

5.326 Special Monthly Compensation Under 38 U.S.C. 1114(m)

    Proposed Sec.  5.326 is derived in part from current Sec.  
3.350(c). It is also derived from those provisions in current Sec.  
3.350(f)--specifically Sec.  3.350(f)(1)(ii), (iv), and (viii) and 
Sec.  3.350(f)(2)(ii)--that provide for entitlement to SMC at the rate 
authorized by 38 U.S.C. 1114(m).
    Proposed Sec.  5.326(a) is based on current Sec.  3.350(c)(1)(i). 
To determine the loss of use of a hand, we have added a cross reference 
to proposed Sec.  5.322, which contains the part 5 counterpart to 
current Sec.  3.350(a)(2). The criteria contained in Sec.  3.350(a)(2) 
are used in the current regulations to determine loss of use of a hand 
as a basis for SMC under 38 U.S.C. 1114(k) and (l). It is VA's long-
standing practice to determine loss of use of a hand as a basis for SMC 
under 38 U.S.C. 1114(m) using the same criteria. This practice ensures 
consistent use and application of terminology, which will promote 
consistency in VA decision-making.
    Proposed Sec.  5.326(c) is based on current Sec.  3.350(f)(1)(ii). 
Where the current regulation states, ``Anatomical loss or loss of use 
of one foot with anatomical loss of one leg so near the hip as to 
prevent use of prosthetic appliance. * * *'', proposed paragraph (c) 
would state, ``* * * with anatomical loss of the other leg * * *.'' VA 
interprets section 1114(m) to mean the anatomical loss or loss of use 
of the foot and the anatomical loss of the leg described in this 
section must involve opposite limbs. Once a leg is lost, the foot on 
that leg is also lost. Statute and regulation already provide SMC for 
the anatomical loss or loss of use of a single foot, 38 U.S.C 1114(k); 
Sec.  3.350(a)(2), and for the anatomical loss or loss of use of both 
feet. 38 U.S.C. 1114; 38 CFR 3.350(b). It would compensate the veteran 
twice for the same disability to permit SMC for anatomical loss of a 
leg so near the hip as to prevent use of a prosthetic appliance and 
anatomical loss or loss of use of the foot of the same leg. VA believes 
that Congress did not intend such a result.
    Proposed Sec.  5.326(i) is based on current Sec.  3.350(c)(1)(v), 
(c)(3), and Sec.  4.79 of this chapter. For the reasons stated in the 
preamble to proposed Sec.  5.320(a), above, we have used the phrase 
``need regular aid and attendance'' instead of ``helpless'' in Sec.  
5.326. We have combined sections 3.350(c)(1)(v) and 3.350(c)(3) in 
proposed Sec.  5.326(i) because Sec.  3.350(c)(3) states how VA applies 
Sec.  3.350(c)(1)(v) when the veteran's visual acuity in both eyes is 
5/200 or the visual field in both eyes is reduced to 5 degrees 
concentric contraction. Section 3.350(c)(3) mandates that if the 
veteran's visual acuity in both eyes is 5/200 or the visual field in 
both eyes is reduced to 5 degrees concentric contraction, VA will 
examine the facts in the individual case to determine whether the 
veteran's vision makes the veteran need regular aid and attendance. 
Proposed Sec.  5.326(i) also clarifies by cross reference that VA will 
apply the criteria found at Sec.  5.320 in determining whether a 
veteran needs regular aid and attendance. Whereas current Sec.  
3.350(c)(3) only states that the need for regular aid and attendance 
will be determined on the facts in the individual case, the language in 
Sec.  5.326(i) notifies veterans and VA personnel of the specific 
criteria. The use of these criteria ensures consistent use and 
application of terminology, which will promote consistency in VA 
decision-making. The application of the criteria for the need for 
regular aid and attendance in Sec.  5.320 to claims for SMC under 38 
U.S.C. 1114(m) is consistent with current VA practice and, therefore, 
the explicit reference to these criteria does not constitute a change 
from the current regulation.

5.327 Special Monthly Compensation at the Intermediate Rate Between 38 
U.S.C. 1114(m) and (n)

    Proposed Sec.  5.327 is derived from those provisions in current 
Sec.  3.350(f)--specifically Sec.  3.350(f)(1)(v), (vii), (ix), and (x) 
and Sec.  3.350(f)(2)(iii)--that provide for entitlement to SMC at the 
intermediate rate between 38 U.S.C. 1114(m) and (n) for specified 
disabilities. The statutory authority for the provisions is 38 U.S.C. 
1114(p). Paragraphs (a) and (b), the counterparts of Sec.  
3.350(f)(1)(x) and (f)(1)(v), respectively, would require the 
involvement of opposite limbs, as described in the discussion of Sec.  
5.326(c), above, for the same reasons discussed above. That is, 
proposed paragraph (a) provides the stated benefit for ``[a]natomical 
loss or loss of use of one hand with anatomical loss or loss of use of 
the other arm.'' Proposed paragraph (b) provides the stated benefit for 
``[a]natomical loss or loss of use of one leg at a level, or with 
complications, preventing natural knee action with prosthesis in place 
with anatomical loss of the other leg.''

5.328 Special Monthly Compensation Under 38 U.S.C. 1114(n)

    Proposed Sec.  5.328 is derived in part from current Sec.  
3.350(d). It is also derived from current Sec.  3.350(f)(1)(xi) which 
provides for entitlement to SMC at the rate authorized by 38 U.S.C. 
1114(n). Proposed Sec.  5.328(a) applies the concepts contained in 
current Sec.  3.350(c)(2) pertaining to natural elbow action and SMC 
under 38 U.S.C. 1114(m) pertaining to SMC under 38 U.S.C. 1114(n). The 
use of this language in proposed Sec.  5.328(a) ensures consistent use 
and application of terminology, which will promote consistency in VA 
decision-making.
    Proposed Sec.  5.328(b), the counterparts of Sec.  3.350(f)(1)(xi), 
would require the involvement of opposite limbs, as described in the 
discussion of Sec.  5.326(c), above, for the same reasons discussed 
above. That is, proposed paragraph (b) would state, ``Anatomical loss 
or loss of use of one hand with anatomical loss of the other arm.''
    Current Sec.  3.350(d) states that, ``The special monthly 
compensation provided by 38 U.S.C. 1114(n) is payable for any of the 
conditions which follow: Amputation is a prerequisite except for loss 
of use of both arms and blindness without light perception in both 
eyes.'' The statute uses the term ``anatomical loss.'' It does not use 
the term ``amputation,'' but the two terms have identical meaning. 
Therefore, we have used ``anatomical loss'' rather than ``amputation'' 
in Sec.  5.328. We have not repeated the sentence of Sec.  3.350(d) 
beginning ``Amputation is a prerequisite * * *'' because it is 
superfluous. It does not confer any rights or benefits. The paragraphs 
that contain the prerequisite of anatomical loss are explicit as to 
that requirement. It is not a prerequisite in those paragraphs that do 
not require it.
    We propose to clarify the rule in current Sec.  3.350(d)(4), which 
establishes entitlement under 38 U.S.C. 1114(n) for anatomical loss of 
both eyes or blindness without light perception in

[[Page 62013]]

both eyes, by stating in proposed Sec.  5.328(e) that benefits under 38 
U.S.C. 1114(n) are available based on ``anatomical loss of one eye and 
blindness without light perception in the other eye.'' The current 
regulation does not provide for a similar visual disability involving 
the anatomical loss of one eye and blindness without light perception 
in the other eye. If there is anatomical loss of an eye, there would be 
no light perception in that eye. Although current Sec.  3.350(d)(4) 
does not explicitly state the basis for entitlement, where there is 
anatomical loss of one eye and blindness without light perception in 
the other eye, there is also, obviously, no light perception in either 
eye. Therefore, entitlement to 38 U.S.C. 1114(n) would be established 
under the current rule.

5.329 Special Monthly Compensation at the Intermediate Rate Between 38 
U.S.C. 1114(n) and (o)

    Proposed Sec.  5.329 is derived from current Sec.  
3.350(f)(1)(xii), which provides for entitlement to SMC at the 
intermediate rate between 38 U.S.C. 1114(n) and (o) for anatomical loss 
or loss of use of one arm at a level, or with complications, preventing 
natural elbow action with prosthesis in place and anatomical loss of 
the other arm so near the shoulder as to prevent the use of prosthetic 
appliance. The statutory authority for this provision is 38 U.S.C. 
1114(p).

5.330 Special Monthly Compensation Under 38 U.S.C. 1114(o)

    Proposed Sec.  5.330 is derived from current Sec.  3.350(e).
    Proposed Sec.  5.330(b) is based on current Sec.  3.350(e)(1)(iii). 
Proposed paragraph (b) implements a statutory amendment to 38 U.S.C. 
1114(o), the authority for paragraph (b) of this section. Public Law 
110-157, sec. 101, 121 Stat. 1831, (Dec. 26, 2007). Specifically, the 
statutory amendment changed the visual acuity criterion of section 
1114(o) from 5/200 to 20/200. Section 5.330(b) would implement this 
statutory change.
    Current Sec.  3.350(e)(2) refers to paraplegia and states that 
paralysis of both lower extremities with loss of anal and bladder 
sphincter control will entitle a veteran to the maximum rate under 38 
U.S.C. 1114(o). In Sec.  5.330(d), we propose to substitute the phrase 
``loss of use'' for the current term ``paralysis.'' The term 
``paralysis'' is not defined for VA purposes. It is a term most 
commonly associated with inability to move or have sensation in a body 
part as a result of an injury or a disease involving the nervous 
system. This is a narrow definition that does not address disabilities 
as a result of muscle or bone damage. The phrase ``loss of use'' is 
used extensively by VA personnel in rating disabilities involving the 
extremities and therefore is an appropriate substitute term. The phrase 
``loss of use'' will be clearer to the reader and will ensure that loss 
of use will entitle a veteran to this level of SMC.
    The basis for an award of SMC at the maximum rate under 38 U.S.C. 
1114(o) for a veteran who has loss of anal and bladder sphincter 
control together with loss of use of both lower extremities is that 
such a veteran is presumed to be in need of regular aid and attendance. 
As such, the veteran is entitled to SMC under 38 U.S.C. 1114(l) and 
1114(m). A veteran with disabilities entitled to two or more of the 
rates provided in 38 U.S.C. 1114(l) through (n) is entitled to 
compensation under 38 U.S.C. 1114(o). This basis for entitlement is 
restated in proposed Sec.  5.330(d).
    We will not repeat Sec.  3.350(e)(4) and the third and fourth 
sentences of Sec.  3.350(e)(3). These sentences are redundant of Sec.  
3.350(e)(1)(ii), which states that the special monthly compensation 
provided by 38 U.S.C. 1114(o) is payable for ``* * * [c]onditions 
entitling to two or more of the rates (no condition being considered 
twice) provided in 38 U.S.C. 1114(l) through (n).'' This provision is 
incorporated in Sec.  5.330(e).
    Current Sec.  3.350(e)(4) reads, ``The maximum rate, as a result of 
including helplessness as one of the entitling multiple disabilities, 
is intended to cover, in addition to obvious losses and blindness, 
conditions such as the loss of use of two extremities with absolute 
deafness and nearly total blindness or with severe multiple injuries 
producing total disability outside the useless extremities, these 
conditions being construed as loss of use of two extremities and 
helplessness.'' This paragraph essentially re-states Sec.  
3.350(e)(1)(ii), which is incorporated in Sec.  5.330(e).
    Similarly, the second, third and fourth sentences of Sec.  
3.350(e)(3) reads:

    This requires, for example, that where a veteran who had 
suffered the loss or loss of use of two extremities is being 
considered for the maximum rate on account of helplessness requiring 
regular aid and attendance, the latter must be based on need 
resulting from pathology other than that of the extremities. If the 
loss or loss of use of two extremities or being permanently 
bedridden leaves the person helpless, increase is not in order on 
account of this helplessness. Under no circumstances will the 
combination of `being permanently bedridden' and `being so helpless 
as to require regular aid and attendance' without separate and 
distinct anatomical loss, or loss of use, of two extremities, or 
blindness, be taken as entitling to the maximum benefit.

    These sentences merely elaborate on or rephrase the limitation from 
current Sec.  3.350(e)(1)(ii) that the same disability may not be 
considered as the basis for two rates of SMC. Although some explanation 
of the concepts of current Sec.  3.350(e)(1)(ii) is helpful, the more 
concise discussion proposed in paragraphs (e)(1) and (2) of Sec.  5.330 
is still sufficient and easier to read and understand.

5.331 Special Monthly Compensation Under 38 U.S.C. 1114(p)

    Proposed Sec.  5.331 is derived from current Sec.  3.350(f)(2) 
through (f)(5). The proposed regulation provides rules regarding 
payment of additional SMC under 38 U.S.C. 1114(p).
    Proposed Sec.  5.331(b)(1) is based on current Sec.  
3.350(f)(2)(iv). Instead of referring to blindness in both eyes with 
visual acuity of 5/200 or less, we propose to refer to proposed Sec.  
5.324(c), which provides for SMC for veterans with visual acuity of 5/
200 or less. Note that, as discussed in the preamble to proposed Sec.  
5.325, we would thereby add concentric contraction of the visual field 
to 5 degrees or less as an equivalent alternative to 5/200 visual 
acuity contained in current Sec.  3.350(f)(2)(iv).
    Current Sec.  3.350(f)(3) states that ``additional single permanent 
disability or combinations of permanent disabilities independently 
ratable at 50 percent or more'' are bases for additional SMC, as 
specified in the rule. In Sec.  5.331(d)(1), we propose to change the 
plural, ``combinations,'' to the singular, ``combination,'' because the 
intent of Sec.  3.350(f)(3) was to require only one combination of 
disabilities independently ratable at 50 percent or more for 
entitlement to the specified additional SMC.
    In proposed Sec.  5.331(d)(1) and (e)(2), we state VA's long-
standing policy that the half-step increase for additional permanent 
independent disability or disabilities ratable at 50 percent or more, 
contained in current Sec.  3.350(f)(3), may not be paid concurrently 
with the full-step increase for an additional single permanent 
independent 100 percent disability, contained in current Sec.  
3.350(f)(4). This policy is consistent with the language of 38 U.S.C. 
1114(p), which states that if a veteran's service-connected 
disabilities exceed the requirements for a particular rate, VA may 
award an additional full-step or an additional half-step to the 
veteran. The full-step and the half-step are alternative awards, not 
cumulative awards.

[[Page 62014]]

    In proposed Sec.  5.331(d)(2) and (e)(3), we restate and clarify 
the rule now in Sec.  3.350(f)(4)(i) affecting entitlement to the 
additional half or whole-step based on additional independent 
disability or disabilities ratable at 50 percent or more, or the single 
permanent independent 100 percent disability, respectively. Current 
Sec.  3.350(f)(4)(i) states, ``Where the multiple loss or loss of use 
entitlement to a statutory or intermediate rate between 38 U.S.C. 
1114(l) and (o) is caused by the same etiological disease or injury, 
that disease or injury may not serve as the basis for the independent 
50 percent or 100 percent unless it is so rated without regard to the 
loss or loss of use.'' We would not use the word ``etiological,'' 
because it is superfluous and possibly confusing.
    ``Etiology'' is a medical term that means ``the causes or origin of 
a disease or disorder.'' Dorland's Illustrated Medical Dictionary 660 
(31st ed. 2007). So, although diabetic neuropathy, Dorland's 1287, and 
diabetic retinopathy, Dorland's 1659, might have the same etiology, it 
is not VA's intent that the phrase ``same etiological disease'' 
preclude the independent 50-percent-or-more or the independent 100 
percent benefit if separate and distinct disabilities with the same 
etiology otherwise meet the criteria for entitlement. Likewise, VA does 
not intend to preclude the benefit if separate and distinct injuries 
have the same etiology, for example, a motor vehicle accident, or a 
bomb blast. Simply, in the context of Sec.  5.331(d)(2) and (e)(3), the 
phrases ``same etiological disease or injury'' and ``same disease or 
injury'' mean the same thing. No substantive change from the meaning of 
current Sec.  3.350(f)(4)(i) is intended.
    We would state the rule in Sec.  5.331(d)(2) as it pertains to the 
additional independent disability or disabilities ratable at 50 percent 
or more as the basis of entitlement to benefits under 38 U.S.C. 
1114(p), and in Sec.  5.331(e)(3) as it pertains to the single 
additional independent 100 percent disability as the basis of 
entitlement to benefits under 38 U.S.C. 1114(p). By doing so, we would 
reinforce that the basis for special monthly compensation (under other 
than section 1114(p)) must be independent of the disability or 
disabilities that are independently ratable at 50 percent or more, or 
of the single disability that is ratable at 100 percent.
    Current Sec.  3.350(f)(3), upon which proposed Sec.  5.331(d)(3) is 
based, states that graduated ratings for arrested tuberculosis ``will 
not be utilized in this connection, but the permanent residuals of 
tuberculosis may be utilized.'' The wording used in the current 
regulation can be improved with respect to its use of the language 
``will not be utilized in this connection'' and ``may be utilized'', 
and we will make these improvements in part 5. The current part 3 
regulation is derived from VA Regulation 1236(C) (as amended on Oct. 
28, 1954) which stated in pertinent part, ``Since this subdivision 
contemplates that [the additional 50 percent disability] be permanent 
in character, the graduated ratings for arrested tuberculosis * * * 
will not be utilized in determining entitlement to * * * special 
monthly compensation.'' We have, therefore, reworded the language in 
proposed Sec.  5.331(d)(3) to reflect that permanent residuals of 
tuberculosis, and not the graduated ratings for arrested tuberculosis, 
may serve as the basis for SMC under Sec.  5.331(d) because the 
graduated ratings for arrested tuberculosis are not intended to be 
permanent.
    Proposed Sec.  5.331(e)(3) is derived from current Sec.  
3.350(f)(4)(ii), which states the same rule, verbatim, as does Sec.  
3.350(f)(3) quoted above. Proposed Sec.  5.331(e)(3) would state the 
same rule as does Sec.  5.331(d)(3) for the same reasons.
    In proposed Sec.  5.331(f), we have restated the triple extremity 
rule contained in current Sec.  3.350(f)(5), which provides for 
compensation for anatomical loss or loss of use of three extremities. 
We have clarified that the triple extremity rule entitles the veteran 
to the next higher intermediate rate or, if the veteran is already 
entitled to an intermediate rate, to the next higher rate under 38 
U.S.C. 1114. We note that current paragraphs Sec.  3.350(f)(2), (f)(3), 
and (f)(5) use different language to describe the same result. Compare 
38 CFR 3.350(f)(2)(iv) (``* * * will afford entitlement to the next 
higher intermediate rate of if the veteran is already entitled to an 
intermediate rate, to the next higher statutory rate * * *.'') with 38 
CFR 3.350(f)(5) (``* * * shall entitle a veteran to the next higher 
rate without regard to whether that rate is a statutory rate or an 
intermediate rate.'').
    We have phrased the part 5 counterparts so that the language is 
consistent throughout proposed Sec.  5.331. Likewise, for consistency 
throughout proposed Sec.  5.331, we have changed the reference to the 
maximum rate payable for anatomical loss or loss of use of three 
extremities from ``38 U.S.C. 1114(p)'' to ``38 U.S.C. 1114(o)''. In 
each other instance of a statement of the maximum rate payable, current 
Sec.  3.350(f) characterizes the maximum payment as ``in no event 
higher than'' or ``not above'' the rate for 38 U.S.C. 1114(o). Whereas 
the rate section 1114(o) provides and the maximum rate section 1114(p) 
provides are the same dollar amount, this change is not substantive.
    We also propose to state clearly in proposed Sec.  5.331(f) that VA 
will combine the loss of use of whichever two extremities will provide 
the veteran with the highest level of SMC payable before awarding the 
next higher rate based on the anatomical loss or loss of use of a third 
extremity. Calculating SMC in this manner provides the highest possible 
level of SMC. This will ensure that VA personnel comply with current 
Sec.  3.103(a) which requires ``a decision which grants every benefit 
that can be supported in law.'' We also propose to state VA's long-
standing policy that when VA applies the triple extremity rule, a 
veteran is entitled to keep any rates payable under 38 U.S.C. 1114(k) 
and any rate payable under 38 U.S.C. 1114(p) for additional independent 
50 or 100 percent disabilities.

5.332 Additional Allowance for Regular Aid and Attendance Under 38 
U.S.C. 1114(r)(1) or for a Higher Level of Care Under 38 U.S.C. 
1114(r)(2)

    Proposed Sec.  5.332 is derived from current Sec. Sec.  3.350(h) 
and 3.352(b). Under current Sec.  3.350(h)(1), a veteran receiving the 
maximum rate of SMC provided by 38 U.S.C. 1114(o) or (p), who requires 
regular aid and attendance or a higher level of care, is entitled to an 
additional allowance under 38 U.S.C. 1114(r) for any period(s) during 
which he or she is not hospitalized at the expense of the United 
States. Current Sec.  3.350(h)(2) is an essentially parallel provision 
that states that a veteran, receiving SMC at the intermediate rate 
between 38 U.S.C. 1114(n) and (o) and at the rate under 38 U.S.C. 
1114(k), who requires regular aid and attendance or a higher level of 
care is entitled to an additional allowance under 38 U.S.C. 1114(r) for 
any period(s) during which he or she is not hospitalized at the expense 
of the United States. Because veterans are entitled to the same 
allowance under 38 U.S.C. 1114(r), regardless of whether they are 
receiving the maximum rate of SMC provided by 38 U.S.C. 1114(o) or are 
receiving SMC at the intermediate rate between 38 U.S.C. 1114(n) and 
(o) plus SMC under 38 U.S.C. 1114(k), proposed Sec.  5.332(a) combines 
the essentially parallel provisions contained in current Sec.  
3.350(h)(1) and (2) into a single paragraph.
    Current Sec.  3.350(h)(2) differs from proposed Sec.  5.332(a) in 
that Sec.  3.350(h)(2) does not state that an allowance under 38 U.S.C. 
1114(r) is payable regardless

[[Page 62015]]

of whether the need for regular aid and attendance or a higher level of 
care is a partial basis for entitlement to SMC at the specified rate 
(the intermediate rate between 38 U.S.C. 1114(n) and (o), plus the rate 
under 38 U.S.C. 1114(k)) or is based on an independent factual 
determination. However, VA's long-standing practice is to allow the 
service-connected disabilities that are used to establish entitlement 
at the specified rate to also be used to establish a factual need for 
regular aid and attendance or a higher level of care for purposes of 
benefits under section 1114(r).
    Proposed Sec.  5.332(b) is derived from those portions of current 
Sec.  3.350(h) that refer to veterans who are in need of regular aid 
and attendance and entitled to an allowance under 38 U.S.C. 1114(r)(1).
    Proposed Sec.  5.332(c) is based on those portions of current Sec.  
3.350(h) that refer to veterans who, in addition to being in need of 
regular aid and attendance, require a higher level of care and are 
entitled to an allowance under 38 U.S.C. 1114(r)(2). Proposed Sec.  
5.332(c) also contains the criteria for the allowance under 38 U.S.C. 
1114(r)(2) that are described in current Sec.  3.352(b).
    There is no part 5 counterpart to current Sec.  3.352(b)(5), which 
states that the allowance under 38 U.S.C. 1114(r)(2) is to be granted 
only when the veteran's need for a higher level of care is clearly 
established and the amount of services required by the veteran on a 
daily basis is substantial. There is no statutory requirement under 38 
U.S.C. 1114(r) that the veteran's need for a higher level of care be 
``clearly established,'' and there is no reason to believe that an 
evidentiary standard different from that set forth in 38 U.S.C. 5107(b) 
should apply to proof of the need for a higher level of care. Although 
the current regulation does not impose a new standard of proof, 
eliminating the ``clearly established'' requirement should eliminate 
the possibility that that requirement could be misconstrued as an 
evidentiary rule. Moreover, the detailed and specific requirements for 
establishing the need for a higher level of care, set forth in 
paragraphs (c)(3), (4), (5), and (6), require evidence of a factual 
nature and sufficiently ensure that the need will be based on evidence 
of record.
    Regarding the current requirement that the amount of needed 
services be ``substantial,'' the definition of ``personal healthcare 
services'' in paragraph (c)(3) describes services that clearly 
establish a greater need than would be required simply by Sec.  5.320. 
Hence, there is no need to repeat the term, ``substantial,'' and the 
application of this part 5 rule will not produce a different outcome 
than the application of the current rule.

5.333 Special Monthly Compensation Under 38 U.S.C. 1114(s)

    Proposed Sec.  5.333 is a restatement of current Sec.  3.350(i). 
The definition of housebound is slightly reworded for uniformity 
throughout part 5. No substantive changes are intended.

5.334 Special Monthly Compensation Tables

    We propose to include tables in paragraphs (d) through (g) of this 
section as aids in determining the statutory or intermediate rate of 
SMC payable for certain combinations of disabilities. These tables will 
make it easier for readers of the regulations to determine the proper 
rate of SMC payable for a combination of severe disabilities. The 
tables summarize selected regulatory text in proposed Sec. Sec.  5.323 
through 5.333, which contain more detailed information about each 
benefit. These tables are intended to provide a useful summary of the 
regulatory text found in current Sec.  3.350. We do not intend these 
tables to confer any rights or benefits in addition to those conferred 
by the regulations.

5.335 Effective Dates--Special Monthly Compensation Under Sec. Sec.  
5.332 and 5.333

    Proposed Sec.  5.335 is derived from a reorganization of current 
Sec.  3.401, which establishes the effective date for SMC based on the 
need for regular aid and attendance or due to being housebound. Current 
Sec.  3.401(a)(1) states that the effective date for an award of 
regular aid and attendance and housebound benefits is either the date 
of receipt of claim or the date entitlement arose, whichever is later, 
except as provided in current Sec.  3.400(o)(2). The same paragraph 
also states that when an award ``based on an original or reopened claim 
is effective for a period prior to the date of receipt of the claim, 
the additional * * * compensation payable by reason of need for regular 
aid and attendance or housebound status shall also be awarded for any 
part of the award's retroactive period for which entitlement to the 
additional benefit is established.'' To clarify current Sec.  
3.401(a)(1), we propose to rewrite this regulation in two separate 
paragraphs (a) and (b) in proposed Sec.  5.335 so that these two rules 
can be more easily identified and understood.
    Proposed Sec.  5.335(a) would refer to Sec.  3.400(o)(2) of this 
chapter, and to paragraph (b) of Sec.  5.335 as exceptions to the 
general effective date rule stated in paragraph (a) of that section.
    In addressing retroactive awards, current 3.401(a)(1) addresses 
pension as well as compensation awards. We have moved the pension 
provision to proposed Sec.  5.392. See 72 FR 54776 (Sep. 26, 2007) 
(effective dates for special monthly pension).
    Proposed Sec.  5.335(b) expands the scope of current Sec.  
3.401(a)(1), which provides for retroactive awards of SMC for regular 
aid and attendance or housebound status, as noted above. Proposed Sec.  
5.335(b) would provide for retroactive awards of any SMC payment when 
entitlement to the SMC is established for any part of a retroactive 
period of compensation based on an original or reopened compensation 
claim. It is logical to treat the effective date of all SMC awards 
consistently with the effective date of awards of SMC for regular aid 
and attendance or housebound status. This is consistent with VA policy 
to grant every benefit to which veterans are entitled. See proposed 
Sec.  5.4(b), published in 71 FR 16457 (Mar. 31, 2006).

5.336 Effective Dates--Additional Compensation for Regular Aid and 
Attendance Payable for a Veteran's Spouse Under Sec.  5.321

    Proposed Sec.  5.336 is derived from a reorganization of those 
parts of current Sec. Sec.  3.401 and 3.501 relating to the effective 
date for SMC for regular aid and attendance payable for a veteran's 
spouse. Current Sec.  3.401(a)(3) states that the effective date for an 
award of additional compensation payable to a veteran based on the need 
for regular aid and attendance of a spouse is the date of receipt of 
the claim or the date entitlement arose, whichever is later. The 
paragraph also states that additional compensation for regular aid and 
attendance for a spouse will be awarded retroactively if the award is 
in conjunction with a retroactive award of compensation based on an 
original or reopened claim, for any part of the retroactive period for 
which entitlement to SMC is established. Proposed Sec.  5.336(a)(1) and 
(2) separate these two rules.
    Current Sec.  3.401(a)(3) refers to the benefit payable for regular 
aid and attendance of the veteran's spouse as ``additional disability 
compensation.'' Proposed Sec.  5.336(a)(2) specifically identifies the 
benefit as regular aid and attendance.
    Current Sec.  3.501(b)(3) states that the effective date for the 
discontinuance of additional compensation to a veteran based on the 
need for regular aid and attendance of a spouse will be the end

[[Page 62016]]

of the month in which the award action is taken if the need for regular 
aid and attendance has ceased. Proposed Sec.  5.336(b) includes this 
effective date provision.

5.337 Award of Special Monthly Compensation Based on the Need for 
Regular Aid and Attendance During Period of Hospitalization

    Current Sec.  3.401(a)(2) states that, when the need for regular 
aid and attendance is initially established while a veteran is 
receiving hospital, institutional, or domiciliary care, the effective 
date for the award will be the date of discharge. We restate this 
information in proposed Sec.  5.337. No substantive changes are 
intended.

Tuberculosis

5.340 Pulmonary Tuberculosis Shown by X-ray in Active Service

    We propose to repeat the language of current Sec.  3.370 in 
proposed Sec.  5.340 without change.

5.341 Presumptive Service Connection for Tuberculous Disease; Wartime 
and Service After December 31, 1946

    We propose to repeat the language of current Sec.  3.371 in 
proposed Sec.  5.341, with only the following technical changes. First, 
the proposed rule references the proposed part 5 counterpart to current 
Sec.  3.307, Sec.  5.261, which was published as proposed on July 27, 
2004. See 69 FR 44614, 44624-25. Second, where current Sec.  3.371(c) 
refers to the time period ``within 36 months after the veteran's 
separation from service as determined under Sec.  3.307(a)(2),'' in 
proposed Sec.  5.341(c) we refer to the time period as ``within the 3-
year presumptive period provided by Sec.  5.261(d).'' The proposed 
language matches the language in proposed Sec.  5.341(a)(1) and will 
make the proposed regulation internally consistent in the reference to 
the 3-year presumptive period for tuberculosis.

5.342 Initial Grant Following Inactivity of Tuberculosis

    We propose to repeat the language of current Sec.  3.372 in 
proposed Sec.  5.342 without change.

5.343 Effect of Diagnosis of Active Tuberculosis

    Proposed Sec.  5.343 repeats the language of current Sec.  3.374, 
except for one technical change and one clarification. The proposed 
rule replaces the title ``Chief Medical Director'' with ``Under 
Secretary for Health,'' VA's current title for the identical position. 
Section 3.374(b) states, ``Reference to the Clinic Director or Chief, 
Outpatient Service, will be in order in questionable cases and, if 
necessary, to the [Under Secretary for Health] in Central Office.'' 
Proposed Sec.  5.343(b) would state, ``In a case where there is no such 
diagnosis, but there is evidence that the veteran has tuberculosis, the 
case will be referred to [the VA officers specified in the 
regulation].'' This makes clear that the referral is mandatory in the 
circumstance described, and it eliminates potential uncertainty about 
what could make a case ``questionable.'' No substantive changes are 
intended.

5.344 Determination of Inactivity (Complete Arrest) of Tuberculosis

    We propose to repeat the language of current Sec.  3.375 in 
proposed Sec.  5.344 without change.

5.345 Changes From Activity in Pulmonary Tuberculosis Pension Cases

    We propose to repeat the language of current Sec.  3.378 in 
proposed Sec.  5.345, with only minor, technical revisions.

5.346 Tuberculosis and Compensation Under 38 U.S.C. 1114(q) and 1156

    Proposed Sec.  5.346(a) repeats the language of current Sec.  
3.959. The proposed section's title makes clear that it only applies to 
compensation under 38 U.S.C. 1114(q) and 1156. This is not done in the 
current regulation. No substantive changes are intended.
    Proposed Sec.  5.346(b)(1)(i) is based on current Sec.  
3.350(g)(1), which provides for SMC for arrested tuberculosis. The 
statutory authority for this compensation was 38 U.S.C. 1114(q), which 
was repealed by section 4(a) of Public Law 90-493, 82 Stat. 409 (Aug. 
19, 1968). However, under section 4(b) of Public Law 90-493, a veteran 
who was receiving or entitled to receive compensation for tuberculosis 
on August 19, 1968, is entitled to a minimum monthly rate of 
compensation of $67. Id. This provision will be placed in part 5 
because there are some current veterans who continue to receive this 
benefit. Although the part 3 equivalent of this paragraph is contained 
in current Sec.  3.350 with the other SMC provisions authorized by 38 
U.S.C. 1114, we propose to place this provision with other regulations 
pertaining to tuberculosis so that it will be easier to locate.
    We propose to repeat the language of current Sec.  3.401(g) in 
proposed Sec.  5.346(b)(1)(ii) without change. Current Sec.  3.401(g) 
provides the effective date for the minimum monthly rate of 
compensation of $67. Placing this effective date provision in the same 
regulation as basis for the specific benefit to which it applies is 
consistent with our proposal to organize by benefit and topic the part 
5 rewrites of the current part 3 regulations.
    Proposed Sec.  5.346(b)(2) is based on current Sec.  3.350(g)(2). 
No substantive changes are intended.

5.347 Continuance of a Total Disability Rating for Service-Connected 
Tuberculosis

    We propose, in Sec.  5.347, to repeat the language of current Sec.  
3.343(b) without substantive change. We have updated the term, ``rating 
board'' to ``agency of original jurisdiction,'' VA's current term for 
the VA activity that is responsible for making the initial 
determination on an issue affecting a claimant's or beneficiary's right 
to benefits.
    The citation to current Sec.  3.321(b) will be updated to the part 
5 equivalent when we publish the final version of this rule.

Injury or Death Due to Hospitalization or Treatment

5.350 Benefits Under 38 U.S.C. 1151(a) for Additional Disability or 
Death Due to Hospital Care, Medical or Surgical Treatment, Examination, 
Training and Rehabilitation Services, or Compensated Work Therapy 
Program

    We propose to repeat the language of current Sec.  3.361 in 
proposed Sec.  5.350 with one substantive change. We have not repeated 
current Sec.  3.361(g)(1), ``Death before January 1, 1957.'' The 
paragraph provides that death compensation is the benefit payable under 
38 U.S.C. 1151 for such deaths.
    There are fewer than 300 beneficiaries currently receiving death 
compensation. Except for one small group of beneficiaries, death 
compensation is payable only if the veteran died prior to January 1, 
1957. VA has not received a claim for death compensation in over 10 
years and we do not expect to receive any more claims. We conclude that 
because of the small number of beneficiaries of death compensation, the 
provisions concerning death compensation do not need to be carried 
forward to part 5.
    We have updated the citation to Sec.  3.114(a), contained in 
current Sec.  3.361(a)(2), to the proposed part 5 counterpart, Sec.  
5.152(a), which was published as proposed on May 22, 2007. See 72 FR 
28770, 28789.
    Current Sec.  3.361 applies to claims under 38 U.S.C. 1151(a) 
received by VA after September 30, 1997. Current Sec.  3.358 is a 
similar regulation that applies to claims under 38 U.S.C. 1151(a) 
received by VA before October 1, 1997. Because Part 5 will apply only 
to future claims, we will not repeat the provisions of current Sec.  
3.358 in Part 5.

[[Page 62017]]

5.351 Effective Dates for Awards of Benefits Under 38 U.S.C. 1151(a)

    Proposed Sec.  5.351 is derived from current Sec.  3.400(i)(1). The 
effective-date rule is restated without substantive change.

5.352 Effect on Benefits Awarded Under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act Compromises, Settlements, and Judgments Entered After 
November 30, 1962

    Proposed Sec.  5.352 restates current Sec.  3.362 with only minor 
technical revisions. Current Sec.  3.362 applies to claims under 38 
U.S.C. 1151(a) received by VA after September 30, 1997. Current Sec.  
3.800 is a similar regulation that applies to claims under 38 U.S.C. 
1151(a) received by VA before October 1, 1997. Because part 5 will 
apply only to future claims, we will not repeat the provisions of 
current Sec.  3.800 in part 5.

5.353 Effect on Benefits Awarded Under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act Administrative Awards, Compromises, Settlements, and 
Judgments Finalized Before December 1, 1962

    Proposed Sec.  5.353 restates current Sec.  3.363 with only minor 
technical revisions. Current Sec.  3.363 applies to claims under 38 
U.S.C. 1151(a) received by VA after September 30, 1997. Current Sec.  
3.800 is a similar regulation that applies to claims under 38 U.S.C. 
1151(a) received by VA before October 1, 1997. Because Part 5 will 
apply only to future claims, we will not repeat the provisions of 
current Sec.  3.800 in Part 5.

Ratings for Healthcare Eligibility Only

5.360 Service Connection of Dental Conditions for Treatment Purposes

    Proposed Sec.  5.360 is derived from current Sec.  3.381. Proposed 
paragraph (a) is a cross reference which states that, ``Eligibility 
requirements for dental treatment are set forth in Sec.  17.161 of this 
chapter.''
    Proposed paragraph (b) is derived from current Sec.  3.381(a). It 
lists the dental conditions that may be considered service connected 
solely for establishing eligibility for outpatient dental treatment. We 
have added a statement of VA's long-standing policy that monetary 
compensation cannot be paid for these dental conditions in order to 
clarify for the public the nature of the VA benefits that veterans are 
entitled to receive.
    In addition, the current regulation under Sec.  3.381(a) lists 
periodontal disease as one of the four dental conditions that can be 
considered for service connection, but it does not indicate whether the 
periodontal disease must be acute or chronic in nature. We propose to 
clarify the requirement that periodontal disease must be chronic in 
nature before service connection can be considered because the current 
VA regulation, in Sec.  3.381(e)(2), prohibits the establishment of 
service connection for acute periodontal disease. This clarification is 
thus consistent with current practice, and including it in this rule 
will help the readers of this provision.
    Current Sec.  3.381(e) says that the conditions listed therein will 
not be service connected for dental treatment purposes. Section 
5.360(c) would insert the word ``outpatient'', thus: ``* * * for 
outpatient dental treatment purposes:''. We note the title of Sec.  
3.381 does not include ``outpatient,'' but Sec.  3.381(a) is about 
conditions that qualify for ``outpatient dental treatment as provided 
in Sec.  17.161 of this chapter.'' Section 3.381 as a whole 
distinguishes conditions that do from conditions that do not qualify 
for treatment as Sec.  17.161 provides. The addition of ``outpatient'' 
to proposed paragraph (c) is to harmonize the section internally and to 
harmonize the section with Sec.  17.161. It makes no substantive 
change.

5.361 Healthcare Eligibility of Persons Administratively Discharged 
Under Other-Than-Honorable Conditions

    Proposed Sec.  5.361 restates, with minor technical and 
organizational revisions, current Sec.  3.360. No substantive changes 
are intended.

5.362 Presumption of Service Incurrence of Active Psychosis for 
Purposes of Entitlement to Hospital, Nursing Home, Domiciliary, and 
Medical Care

    Chapter 17 of title 38 U.S.C. pertains to hospital, nursing home, 
and domiciliary and medical care for veterans. Section 1702 of this 
title states:

    For the purposes of [chapter 17], any veteran of World War II, 
the Korean conflict, the Vietnam era, or the Persian Gulf War who 
developed an active psychosis (1) within two years after discharge 
or release from the active military, naval, or air service, and (2) 
before July 26, 1949, in the case of a veteran of World War II, 
before February 1, 1957, in the case of a veteran of the Korean 
conflict, before May 8, 1977, in the case of a Vietnam era veteran, 
or before the end of the two year period beginning on the last day 
of the Persian Gulf War, in the case of a veteran of the Persian 
Gulf War, shall be deemed to have incurred such disability in active 
military, naval, or air service.

    We propose a new regulation that implements this statutory 
provision. Although the statutory provision was enacted originally in 
1958, it has never been codified by regulation. Codifying this 
provision will help ensure that veterans, their representatives, and VA 
employees are aware of this potentially important benefit.
    Proposed Sec.  5.362(a) sets forth the basic rule that VA will 
presume service connected an active psychosis that develops in a 
veteran identified in Sec.  5.362(b). Proposed Sec.  5.362(b) sets 
forth the statutorily required wartime service and provides the exact 
periods during which the active psychosis must have developed or, in 
the case of the ongoing Persian Gulf War, provides that such psychosis 
must have developed within two years after the end of that war.
    To aid the reader, we propose to cross reference Sec.  5.20, 
published as proposed on January 30, 2004, which specifies the periods 
of war. See 69 FR 4820, 4832.

5.363 Determination of Service Connection for Former Members of the 
Armed Forces of Czechoslovakia or Poland

    We propose no substantive change to the language of current Sec.  
3.359. We have updated the term, ``rating board'' to ``agency of 
original jurisdiction,'' VA's current term for the VA activity that is 
responsible for making the initial determination on an issue affecting 
a claimant's or beneficiary's right to benefits.

Miscellaneous Service-Connection Regulations

5.365 Claims Based on the Effects of Tobacco Products

    We propose to repeat the language of current Sec.  3.300 in Sec.  
5.365 without substantive change. We are not repeating the first clause 
of Sec.  3.300, ``For claims received by VA after June 9, 1998,'' 
because all claims under part 5 will be received after 1998. For 
references to other part 3 provisions contained within current Sec.  
3.300, we have updated the references to the part 5 counterparts that 
have already been addressed in a prior NPRM. Sections 5.260, 5.261, 
5.262, 5.263, 5.264, 2.265, 5.267, and 5.268 were published as proposed 
on July 27, 2004. See 69 FR 44614. We have retained the cite to the 
current part 3 regulation where the proposed part 5 regulation that 
deals with the same subject matter has not yet been published.

5.366 Disability Due to Impaired Hearing

    Proposed Sec.  5.366 is a restatement of current Sec.  3.385. No 
substantive changes are intended.

[[Page 62018]]

5.367 Civil Service Preference Ratings

    We propose to repeat the content of current Sec.  3.357 in proposed 
Sec.  5.367 without change.

5.368 Basic Eligibility Determinations: Home Loan and Education 
Benefits

    We propose to repeat the language of current Sec.  3.315(b) and (c) 
in proposed Sec.  5.368 without substantive change. Note that this 
proposed regulation does not contain an equivalent provision to current 
Sec.  3.315(a); however, current Sec.  3.57(a)(1)(ii) states the same 
rule regarding the definition of child--that a person 18 years of age 
or older may be recognized as a ``child'' for the purpose of 
compensation and pension benefits, if the person, before reaching 18 
years of age, became permanently incapable of self-support by reason of 
physical or mental disability. Proposed Sec.  5.220(b)(2)(i), the 
proposed part 5 equivalent of these part 3 provisions, was published on 
September 20, 2006. See 71 FR 55052, 55069.
    In proposed Sec.  5.368, we have changed the citation to Sec.  
3.12a to its counterpart in part 5, Sec.  5.39, published as proposed 
on January 30, 2004. See 69 FR 4820, 4841-42.

Endnote Regarding Amendatory Language

    We intend to ultimately remove part 3 entirely, but we are not 
including amendatory language to accomplish that at this time. VA will 
provide public notice before removing part 3.

Paperwork Reduction Act of 1995

    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 regulatory 
amendment 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 amendment would not 
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
proposed amendment 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.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined, and it has been 
determined to be a significant regulatory action under the Executive 
Order because it is likely to result in a rule that may raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in 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 an 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 1 year. This proposed rule would have no such effect 
on State, local, and tribal governments, or the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.100, Automobiles and Adaptive Equipment 
for Certain Disabled Veterans and Members of the Armed Forces; 64.101, 
Burial Expenses Allowance for Veterans; 64.102, Compensation for 
Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for 
Non-Service Connected Disability for Veterans; 64.105, Pension to 
Veterans Surviving Spouses, and Children; 64.106, Specially Adapted 
Housing for Disabled Veterans; 64.109, Veterans Compensation for 
Service-Connected Disability; 64.110, Veterans Dependency and Indemnity 
Compensation for Service-Connected Death; 64.115, Veterans Information 
and Assistance; and 64.127, Monthly Allowance for Children of Vietnam 
Veterans Born with Spina Bifida.

List of Subjects in 38 CFR Part 5

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

    Approved: July 10, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
    For the reasons set out in the preamble, VA proposes to further 
amend 38 CFR part 5 as proposed to be added at 69 FR 4832, January 30, 
2004, and as further proposed to be amended at 69 FR 44614, July 27, 
2004, as follows:

PART 5--COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS

Subpart E--Claims for Service Connection and Disability 
Compensation

    1. The authority citation for subpart E continues to read as 
follows:

    Authority: 38 U.S.C. 501(a) and as noted in specific sections.

    2. Sections 5.320 through 5.369 and their undesignated center 
headings are added to subpart E to read as follows:

Special Monthly Compensation

Sec.
5.320 Determining need for regular aid and attendance.
5.321 Additional compensation for veteran whose spouse needs regular 
aid and attendance.
5.322 Special monthly compensation--general information and 
definitions of disabilities.
5.323 Special monthly compensation under 38 U.S.C. 1114(k).
5.324 Special monthly compensation under 38 U.S.C. 1114(l).
5.325 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(l) and (m).
5.326 Special monthly compensation under 38 U.S.C. 1114(m).
5.327 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(m) and (n).
5.328 Special monthly compensation under 38 U.S.C. 1114(n).
5.329 Special monthly compensation at the intermediate rate between 
38 U.S.C. 1114(n) and (o).
5.330 Special monthly compensation under 38 U.S.C. 1114(o).
5.331 Special monthly compensation under 38 U.S.C. 1114(p).

[[Page 62019]]

5.332 Additional allowance for regular aid and attendance under 38 
U.S.C. 1114(r)(1) or for a higher level of care under 38 U.S.C. 
1114(r)(2).
5.333 Special monthly compensation under 38 U.S.C. 1114(s).
5.334 Special monthly compensation tables.
5.335 Effective dates--Special monthly compensation under Sec. Sec.  
5.332 and 5.333.
5.336 Effective dates--additional compensation for regular aid and 
attendance payable for a veteran's spouse under Sec.  5.321.
5.337 Award of special monthly compensation based on the need for 
regular aid and attendance during period of hospitalization.
5.338-5.339 [Reserved]

Tuberculosis

5.340 Pulmonary tuberculosis shown by X-ray in active service.
5.341 Presumptive service connection for tuberculous disease; 
wartime and service after December 31, 1946.
5.342 Initial grant following inactivity of tuberculosis.
5.343 Effect of diagnosis of active tuberculosis.
5.344 Determination of inactivity (complete arrest) of tuberculosis.
5.345 Changes from activity in pulmonary tuberculosis pension cases.
5.346 Tuberculosis and compensation under 38 U.S.C. 1114(q) and 
1156.
5.347 Continuance of a total disability rating for service-connected 
tuberculosis.
5.348-5.349 [Reserved]

Injury or Death Due to Hospitalization or Treatment

5.350 Benefits under 38 U.S.C. 1151(a) for additional disability or 
death due to hospital care, medical or surgical treatment, 
examination, training and rehabilitation services, or compensated 
work therapy program.
5.351 Effective dates for awards of benefits under 38 U.S.C. 
1151(a).
5.352 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act compromises, settlements, and judgments entered 
after November 30, 1962.
5.353 Effect on benefits awarded under 38 U.S.C. 1151(a) of Federal 
Tort Claims Act administrative awards, compromises, settlements, and 
judgments finalized before December 1, 1962.
5.354-5.359 [Reserved]

Ratings for Healthcare Eligibility Only

5.360 Service connection of dental conditions for treatment 
purposes.
5.361 Healthcare eligibility of persons administratively discharged 
under other-than-honorable conditions.
5.362 Presumption of service incurrence of active psychosis for 
purposes of hospital, nursing home, domiciliary, and medical care.
5.363 Determination of service connection for former members of the 
Armed Forces of Czechoslovakia or Poland.
5.364 [Reserved]

Miscellaneous Service-Connection Regulations

5.365 Claims based on the effects of tobacco products.
5.366 Disability due to impaired hearing.
5.367 Civil service preference ratings.
5.368 Basic eligibility determinations: home loan and education 
benefits.
5.369 [Reserved]
Subpart E--Claims for Service Connection and Disability Compensation

Special Monthly Compensation


Sec.  5.320  Determining need for regular aid and attendance.

    For the purposes of this part, an individual needs regular aid and 
attendance if either of the following is true:
    (a) The individual, based on his or her condition as a whole, has a 
temporary or permanent need for assistance, as shown by the extent of 
his or her impaired ability to perform any or all of the following 
functions:
    (1) Getting dressed or undressed.
    (2) Keeping clean and presentable.
    (3) Making frequent and necessary adjustments to a prosthetic or 
orthopedic appliance. (This does not include the adjustment of 
appliances that able persons also cannot adjust without assistance, 
such as lacing at the back, supports, and belts.)
    (4) Eating or drinking, as a result of the loss of coordination of 
the upper extremities or extreme weakness.
    (5) Attending to bowel and bladder needs.
    (6) Protecting himself or herself from the hazards or dangers of 
his or her daily environment.
(Authority: 38 U.S.C. 1114(l), (m), (r)).

    (b) The individual is temporarily or permanently bedridden (i.e., 
must remain in bed due to his or her disability or disabilities based 
on medical necessity and not based on a prescription of bed rest for 
purposes of convalescence or cure).

(Authority: 38 U.S.C. 1114(l))

Sec.  5.321  Additional compensation for veteran whose spouse needs 
regular aid and attendance.

    (a) General entitlement. A veteran who has a service-connected 
disability rating of at least 30 percent is entitled to special monthly 
compensation (SMC) if his or her spouse needs regular aid and 
attendance.
    (b) Automatic eligibility. The spouse will be considered to be in 
need of regular aid and attendance if any of the following apply:
    (1) The spouse has corrected visual acuity of 5/200 or less in both 
eyes;
    (2) The spouse has concentric contraction of the visual field to 5 
degrees or less in both eyes; or
    (3) The spouse is a patient in a nursing home because of mental or 
physical incapacity.
    (c) Factual need. If the spouse does not meet the criteria under 
paragraph (b), the spouse will be considered in need of regular aid and 
attendance if need is demonstrated under Sec.  5.320.

(Authority: 38 U.S.C. 1115)

Sec.  5.322  Special monthly compensation--general information and 
definitions of disabilities.

    (a) General. (1) Multiple regulations (Sec. Sec.  5.321, 5.323-
5.333) allow special monthly compensation (SMC) to veterans who have 
certain service-connected disabilities. The monetary rates of payment 
of SMC are found in 38 U.S.C. 1114 and 1115(1)(E). They are also on the 
Internet at http://www.va.gov and are available from any VA Regional 
Office. Under 38 U.S.C. 1114 and 1115(1)(E), a veteran is entitled to 
SMC if he or she is in receipt of service-connected disability 
compensation and:
    (i) Is in need of regular aid and attendance (see Sec.  5.320);
    (ii) Is permanently bedridden;
    (iii) Has certain disabilities or combinations of disabilities; or
    (iv) Has a spouse who is in need of regular aid and attendance.
    (2) Certain nonservice-connected disabilities will be considered in 
determining entitlement to SMC. (See Sec. Sec.  5.323(c)(5)) 
(contribution of nonservice-connected loss of use of creative organ to 
service-connected loss of use of creative organ); 5.330(b), (c) 
(bilateral deafness of specified severity); 5.331(b) (bilateral 
blindness as specified with bilateral deafness as specified).
    (3) This section defines disabilities that establish entitlement to 
SMC and that are not defined in other regulations.
    (b) Loss of use of a hand means the hand functions no better than a 
prosthesis would function if attached to the arm at a point of 
amputation below the elbow. In making this determination, VA will 
consider the actual remaining function of the hand, including, but not 
limited to, whether the hand can perform acts such as grasping or 
manipulation with the same proficiency as an amputation stump with 
prosthesis. Complete ankylosis of two major joints of an upper 
extremity is an example of a situation that will constitute loss of use 
of the hand. The major joints of the upper extremity are the shoulder, 
elbow, and wrist.
    (c) Loss of use of a foot means the foot functions no better than a 
prosthesis

[[Page 62020]]

would function if attached to the leg at a point of amputation below 
the knee. In making this determination, VA will consider the actual 
remaining function of the foot, including, but not limited to, whether 
the foot can perform acts such as balance or propulsion with the same 
proficiency as an amputation stump with prosthesis. Examples of 
situations that will constitute loss of use of a foot include:
    (1) Extremely unfavorable complete ankylosis of the knee, that is, 
the knee fixed in flexion at an angle of 45 degrees or more;
    (2) Complete ankylosis of two major joints of the lower extremity, 
that is, of the hip, knee, or ankle;
    (3) Shortening of the lower extremity of 3.5 inches or more; and
    (4) Complete paralysis of the external popliteal nerve (common 
peroneal) and resulting foot drop, accompanied by characteristic 
organic changes including trophic and circulatory disturbances and 
other concomitants that confirm complete paralysis of the nerve.
    (d) Natural elbow or knee action prevented when a prosthesis is in 
place means that the veteran is unable to use a prosthesis that 
requires the natural use of the elbow or knee joint. If there is no 
movement of the joint (as in complete ankylosis or complete paralysis) 
and a prosthesis is not used, VA will determine entitlement to SMC 
based on prevented natural elbow or knee action as if a prosthesis were 
in place.
    (e) Use of prosthesis prevented means that the veteran's disability 
prevents the use of prosthesis. This can establish the veteran's 
entitlement to SMC in two circumstances:
    (1) Anatomical loss near the shoulder. A veteran meets the 
requirements for SMC based on anatomical loss of the upper extremity 
(arm) near the shoulder if the anatomical loss prevents the use of a 
prosthesis, and reamputation at a higher level that permits the use of 
a prosthesis is not possible. However, if the veteran cannot wear a 
prosthesis at the present level of amputation of the arm but could wear 
a prosthesis if there were a reamputation at a higher level, VA will 
consider the veteran eligible only for SMC based on anatomical loss or 
loss of use of the arm at a level, or with complications, preventing 
natural elbow action with a prosthesis in place (see paragraph (d) of 
this section).
    (2) Anatomical loss near the hip. A veteran meets the requirements 
for SMC based on anatomical loss of the lower extremity (leg) near the 
hip if the anatomical loss prevents the use of a prosthesis, and 
reamputation at a higher level that permits the use of a prosthesis is 
not possible. However, if the veteran cannot wear a prosthesis at the 
present level of amputation of the leg but could wear a prosthesis if 
there were a reamputation at a higher level, VA will consider the 
veteran eligible only for SMC based on anatomical loss or loss of use 
of the leg at a level, or with complications, preventing natural knee 
action with a prosthesis in place (see paragraph (d) of this section).
    (f) Visual acuity of 5/200 or less. If the veteran has actual 
visual acuity better than 5/200 but is nevertheless assigned a 
disability rating under part 4 of this chapter based on visual acuity 
of 5/200, the veteran is not considered to have visual acuity of 5/200 
or less for purposes of eligibility for SMC. See Sec.  4.83 of this 
chapter.
    (g) Loss of use or blindness of one eye, having only light 
perception. Loss of use or blindness of one eye, having only light 
perception, means that the veteran is unable to recognize test letters 
at 1 foot and cannot perceive objects or hand movements, or count 
fingers, at a distance of 3 feet. A veteran is eligible for SMC under 
this paragraph if he or she meets the criteria in the preceding 
sentence, even if the veteran can perceive objects or hand movements, 
or can count fingers, at distances of less than 3 feet. See Sec.  4.79 
of this chapter.

(Authority: 38 U.S.C. 501(a), 1114)

Sec.  5.323  Special monthly compensation under 38 U.S.C. 1114(k).

    (a) Basic entitlement. Special monthly compensation (SMC) under 38 
U.S.C. 1114(k) is payable to a veteran who has the following service-
connected disabilities:
    (1) Anatomical loss or loss of use of one hand.
    (2) Anatomical loss or loss of use of one foot.
    (3) Anatomical loss or loss of use of both buttocks.
    (4) Anatomical loss or loss of use of one or more creative organs.
    (5) Blindness of one eye having only light perception.
    (6) Deafness of both ears having absence of air and bone 
conduction.
    (7) Complete organic aphonia with constant inability to communicate 
by speech.
    (8) In the case of a female veteran, either of the following:
    (i) Anatomical loss of 25 percent or more of tissue from a single 
breast or both breasts in combination (including, but not limited to, 
loss by mastectomy or partial mastectomy); or
    (ii) Treatment of breast tissue with radiation (``treatment'' 
includes therapeutic procedures but not diagnostic procedures).
    Note to paragraph (a): For the criteria for determining anatomical 
loss or loss of use of a hand or of a foot, see Sec.  5.322(b) and (c) 
respectively. For the criteria for determining loss of use or blindness 
of one eye, having only light perception, see Sec.  5.322(g).
    (b) Limitations.
    (1) Combining with 38 U.S.C. 1114(a) through (j), or (s). SMC under 
38 U.S.C. 1114(k) is payable in addition to the compensation authorized 
by 38 U.S.C. 1114(a) through (j), or (s), subject to the following 
limitations:
    (i) The combined rate of compensation must not exceed the monthly 
rate provided by 38 U.S.C. 1114(l) when authorized in conjunction with 
any of the rates provided by 38 U.S.C. 1114(a) through (j), or (s).
    (ii) If the veteran has entitlement under 38 U.S.C. 1114(l) through 
(n), or (p), SMC under 38 U.S.C. 1114(k) is payable for each anatomical 
loss or loss of use in addition to the losses used to establish 
entitlement under 38 U.S.C. 1114(l) through (n), or (p), as long as the 
combined monthly compensation does not exceed the monthly rate provided 
by 38 U.S.C. 1114(o).
    (iii) The additional compensation for dependents under 38 U.S.C. 
1115 and the additional allowance for regular aid and attendance or a 
higher level of care provided by 38 U.S.C. 1114(r) are not subject to 
the above limitations regarding maximum monthly compensation payable 
under this paragraph.
    (2) Combining with 38 U.S.C. 1114(l) through (n). A disability for 
which SMC is paid under 38 U.S.C. 1114(k) may not be a basis for a 
higher level of SMC under 38 U.S.C. 1114(l) through (n); however, a 
disability for which SMC is paid under 38 U.S.C. 1114(k) may be paid 
concurrently with SMC under 38 U.S.C. 1114(l) through (n), as long as 
the same disability is not the basis for SMC under both 38 U.S.C. 
1114(k) and either 38 U.S.C. 1114(l), (m), or (n). The total combined 
rate of SMC cannot exceed the amount set forth in 38 U.S.C. 1114(o).
    (c) Creative organ. (1) A creative organ means an organ directly 
involved in reproduction.
    (2) Anatomical loss of a creative organ exists in any of the 
following circumstances:
    (i) Acquired absence of one or both testicles (other than 
undescended testicles);
    (ii) Acquired absence of one or both ovaries; or
    (iii) Acquired absence of other creative organs.

[[Page 62021]]

    (3) Loss of use of a creative organ exists in any of the following 
circumstances:
    (i) The diameters of the affected testicle are reduced to one-third 
of the corresponding diameters of the normal testicle;
    (ii) The diameters of the affected testicle are reduced to one-half 
or less of the corresponding normal testicle with changes in 
consistency of the affected testicle (harder or softer) when compared 
to the normal testicle;
    (iii) Absence of spermatozoa proven by biopsy performed with the 
informed consent of the veteran; or
    (iv) Medical evidence shows that, due to injury or disease, 
reproduction is not possible without medical intervention. This could 
occur if the veteran has:
    (A) In the case of paired creative organs, the loss of function of 
at least one such organ; or
    (B) In the case of an unpaired creative organ, loss of function.
    (4) SMC under 38 U.S.C. 1114(k) is payable for service-connected 
erectile dysfunction as the loss of use of a creative organ even if the 
veteran uses prescription medications or mechanical devices to treat 
the erectile dysfunction. This rule applies regardless of whether such 
treatment is effective.
    (5) SMC under 38 U.S.C. 1114(k) is payable for a service-connected 
anatomical loss of a creative organ even if it is preceded by a 
nonservice-connected loss of use. Examples of this include, but are not 
limited to, the following:
    (i) The veteran had a vasectomy before military service with the 
anatomical loss or loss of use of one testicle during military service;
    (ii) The veteran had a vasectomy following military service with a 
subsequent prostatectomy as a result of service-connected prostate 
cancer;
    (iii) The veteran had impotence as a result of a nonservice-
connected psychiatric condition with subsequent prostatectomy due to 
service-connected prostate cancer; or
    (iv) The veteran had a tubal ligation before service with a 
subsequent oophorectomy due to service-connected injury or disease.
    (6) SMC under 38 U.S.C. 1114(k) is not payable when anatomical loss 
or loss of use of a creative organ resulted from elective surgery 
performed after military service. However, if the elective surgery 
after service was necessary to correct an injury caused by surgery 
during military service, SMC under 38 U.S.C. 1114(k) is payable. 
Surgery advised on sound medical judgment for relief of a pathological 
condition or to prevent possible future pathological consequences is 
not considered to be elective surgery.
    (7) Atrophy resulting from mumps followed by orchitis in service is 
presumed service connected. Because atrophy is usually perceptible 
within 1 to 6 months after infection subsides, an examination more than 
6 months after the remission of orchitis demonstrating a normal 
genitourinary system will be considered in determining if the 
presumption is rebutted.
    (d) Determining loss of use of both buttocks. (1) Loss of use of 
both buttocks exists if there is severe damage by disease or injury to 
muscle group XVII, bilaterally (See Sec. Sec.  4.56, 4.73, Diagnostic 
Code 5317, of this chapter), and additional disability making it 
impossible for the individual, without assistance, to rise from a 
seated position and from a stooped position (fingers to toes position) 
and to maintain postural stability (pelvis upon head of femur). The 
cited assistance may be provided by the individual's own hands or arms, 
and, in the matter of postural stability, by a special appliance.
    (2) The receipt of SMC for anatomical loss or loss of use of both 
lower extremities under 38 U.S.C. 1114(l) through (n) does not prevent 
the receipt of SMC under 38 U.S.C. 1114(k) for loss of use of both 
buttocks if appropriate tests clearly substantiate there is such 
additional loss of use.
    (e) Deafness. Deafness of both ears, having absence of air and bone 
conduction, exists if an authorized VA audiology examination shows 
bilateral hearing loss equal to or greater than the bilateral hearing 
loss required for a maximum rating under the Schedule for Rating 
Disabilities in part 4 of this chapter.
    (f) Aphonia. Complete organic aphonia exists if an individual has a 
disability of the speech organs that constantly precludes communication 
by speech.

(Authority: 38 U.S.C. 1114(k))

Sec.  5.324  Special monthly compensation under 38 U.S.C. 1114(l).

    Special monthly compensation (SMC) under 38 U.S.C. 1114(l) is 
payable to a veteran who has any of the following service-connected 
disabilities:
    (a) Anatomical loss or loss of use of both feet. See Sec.  
5.322(c).
    (b) Anatomical loss or loss of use of one hand and one foot. See 
Sec.  5.322(b), (c).
    (c) Each eye having either:
    (1) Blindness with visual acuity of 5/200 or less under Sec.  
5.322(f); or
    (2) Concentric contraction of the visual field to 5 degrees or 
less.
    (d) Service-connected disability (or disabilities) causing the 
veteran to be permanently bedridden, which means that the veteran must 
remain in bed, and it is reasonably certain that the confinement to bed 
will continue throughout his or her lifetime. The criteria for 
determining whether a veteran is bedridden are found at Sec.  5.320(b).
    (e) Service-connected disability or disabilities establishing the 
veteran's need for regular aid and attendance under Sec.  5.320. Note: 
Unless the veteran is entitled to additional SMC under 38 U.S.C. 
1114(r) (see Sec.  5.332), VA will award SMC under 38 U.S.C. 1114(l) 
based on permanently bedridden status if the veteran is permanently 
bedridden (see paragraph (d) of this section) rather than on the need 
for regular aid and attendance.

(Authority: 38 U.S.C. 1114(l))

    Cross Reference: Sec.  5.330, ``Special monthly compensation 
under 38 U.S.C. 1114(o)'' (discussing combinations of awards made 
under Sec. Sec.  5.324, 5.326, or 5.328).


Sec.  5.325  Special monthly compensation at the intermediate rate 
between 38 U.S.C. 1114(l) and (m).

    VA will pay special monthly compensation (SMC) at the intermediate 
rate between 38 U.S.C. 1114(l) and (m) for any of the combinations of 
disabilities listed in paragraphs (a) through (d) of this section. (The 
intermediate rate is the arithmetic mean between the rates for (l) and 
(m), rounded down to the next lower dollar.)
    (a) Anatomical loss or loss of use of one foot with anatomical loss 
or loss of use of the opposite leg at a level, or with complications, 
preventing natural knee action with prosthesis in place.
    (b) Anatomical loss or loss of use of one arm at a level, or with 
complications, preventing natural elbow action with prosthesis in place 
with anatomical loss or loss of use of one foot.
    (c) Anatomical loss or loss of use of one hand with anatomical loss 
or loss of use of one leg at a level, or with complications, preventing 
natural knee action with prosthesis in place.
    (d) Blindness of one eye with visual acuity of 5/200 or less, or 
concentric contraction of the visual field to 5 degrees or less of one 
eye; and blindness of the other eye, having only light perception.

(Authority: 38 U.S.C. 1114(p))

    Cross Reference: Sec.  5.322, ``Special monthly compensation--
general information and definitions of disabilities'' (containing 
the criteria for the disabilities listed in Sec.  5.325).

[[Page 62022]]

Sec.  5.326  Special monthly compensation under 38 U.S.C. 1114(m).

    Special monthly compensation (SMC) under 38 U.S.C. 1114(m) is 
payable for any of the following combinations of disabilities:
    (a) Anatomical loss or loss of use of both hands.
    (b) Anatomical loss or loss of use of both legs at a level, or with 
complications, preventing natural knee action with prosthesis in place.
    (c) Anatomical loss or loss of use of one foot with anatomical loss 
of the other leg so near the hip as to prevent the use of prosthetic 
appliance.
    (d) Anatomical loss or loss of use of one arm so near the shoulder 
as to prevent the use of prosthetic appliance with anatomical loss or 
loss of use of one foot.
    (e) Anatomical loss or loss of use of one arm at a level, or with 
complications, preventing natural elbow action with prosthesis in place 
and anatomical loss or loss of use of one leg at a level, or with 
complications, preventing natural knee action with prosthesis in place.
    (f) Anatomical loss or loss of use of one hand with anatomical loss 
of one leg so near the hip as to prevent the use of a prosthetic 
appliance.
    (g) Blindness in both eyes having only light perception.
    (h) Blindness of one eye with visual acuity of 5/200 or less or 
with concentric contraction of the visual field to 5 degrees or less; 
and
    (1) Anatomical loss of the other eye; or
    (2) Blindness without light perception of the other eye.
    (i) Blindness in both eyes leaving the veteran so significantly 
disabled as to need regular aid and attendance. If the veteran has 
visual acuity of 5/200 or less in both eyes or concentric contraction 
of the visual field to 5 degrees or less in both eyes, then entitlement 
to compensation at the section 1114(m) rate will be determined on the 
facts in the individual case.

(Authority: 38 U.S.C. 1114(m), (p))

    Cross References: Sec.  5.320, ``Determining need for regular 
aid and attendance.'' Sec.  5.322, ``Special monthly compensation--
general information and definitions of disabilities'' (containing 
the criteria for the disabilities listed in Sec.  5.326). Sec.  
4.76, ``Examination of field [of] vision'' (containing the criteria 
for blindness based on concentric contraction of the visual field). 
Sec.  5.330, ``Special monthly compensation under 38 U.S.C. 
1114(o)'' (discussing combinations of awards made under Sec. Sec.  
5.324, 5.326, or 5.328).


Sec.  5.327  Special monthly compensation at the intermediate rate 
between 38 U.S.C. 1114(m) and (n).

    VA will pay special monthly compensation (SMC) at the intermediate 
rate between 38 U.S.C. 1114(m) and (n) for any of the combinations of 
disabilities listed in paragraphs (a) through (d) of this section. (The 
intermediate rate is the arithmetic mean between the rates for 38 
U.S.C. 1114(m) and (n), rounded down to the nearest dollar.)
    (a) Anatomical loss or loss of use of one hand with anatomical loss 
or loss of use of the other arm at a level, or with complications, 
preventing natural elbow action with prosthesis in place.
    (b) Anatomical loss or loss of use of one leg at a level, or with 
complications, preventing natural knee action with prosthesis in place 
with anatomical loss of the other leg so near the hip as to prevent the 
use of prosthetic appliance.
    (c) Anatomical loss of one arm so near the shoulder as to prevent 
the use of prosthetic appliance with anatomical loss or loss of use of 
one leg at a level, or with complications, preventing natural knee 
action with prosthesis in place.
    (d) Anatomical loss or loss of use of one arm at a level, or with 
complications, preventing natural elbow action with prosthesis in place 
with anatomical loss of one leg so near the hip as to prevent the use 
of prosthetic appliance.
    (e) Blindness of one eye, having only light perception; and
    (1) Anatomical loss of the other eye; or

    (2) Blindness without light perception of the other eye.

(Authority: 38 U.S.C. 1114(p))

    Cross References: Sec.  5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec.  5.326, 
``Special monthly compensation under 38 U.S.C. 1114(m).''


Sec.  5.328  Special monthly compensation under 38 U.S.C. 1114(n).

    VA will pay special monthly compensation (SMC) under 38 U.S.C. 
1114(n) for any of the combinations of disabilities listed in 
paragraphs (a) through (e) of this section.
    (a) Anatomical loss or loss of use of both arms at a level, or with 
complications, preventing natural elbow action with prosthesis in 
place.
    (b) Anatomical loss or loss of use of one hand with anatomical loss 
of the other arm so near the shoulder as to prevent the use of a 
prosthetic appliance.
    (c) Anatomical loss of both legs so near the hip as to prevent the 
use of prosthetic appliances.
    (d) Anatomical loss of one arm so near the shoulder as to prevent 
the use of a prosthetic appliance and anatomical loss of one leg so 
near the hip as to prevent the use of a prosthetic appliance.
    (e) Anatomical loss of both eyes, blindness without light 
perception in both eyes, or anatomical loss of one eye and blindness 
without light perception in the other eye.

(Authority: 38 U.S.C. 1114(n), (p))

    Cross References: Sec.  5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec.  5.326, 
``Special monthly compensation under 38 U.S.C. 1114(m).'' Sec.  
5.327, ``Special monthly compensation at the intermediate rate 
between 38 U.S.C. 1114(m) and (n)'' (containing the criteria for the 
disabilities listed in Sec.  5.328). Sec.  5.330, ``Special monthly 
compensation under 38 U.S.C. 1114(o)'' (discussing combinations of 
awards made under Sec. Sec.  5.324, 5.326, or 5.328).


Sec.  5.329  Special monthly compensation at the intermediate rate 
between 38 U.S.C. 1114(n) and (o).

    VA will pay special monthly compensation (SMC) at the intermediate 
rate between 38 U.S.C. 1114(n) and (o) for anatomical loss or loss of 
use of one arm at a level, or with complications, preventing natural 
elbow action with prosthesis in place and anatomical loss of the other 
arm so near the shoulder as to prevent the use of prosthetic appliance. 
(The intermediate rate is the arithmetic mean between the rates for (n) 
and (o), rounded down to the next lower dollar.)
(Authority: 38 U.S.C. 1114(p))

    Cross References: Sec.  5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec.  5.328, 
``Special monthly compensation under 38 U.S.C. 1114(n)'' (containing 
the criteria for the disabilities listed in Sec.  5.329).


Sec.  5.330  Special monthly compensation under 38 U.S.C. 1114(o).

    VA will pay special monthly compensation (SMC) under 38 U.S.C. 
1114(o) for any of the following combinations of disabilities:
    (a) Anatomical loss of both arms so near the shoulder as to prevent 
the use of prosthetic appliances.
    (b) Bilateral deafness rated at 60 percent or more disabling (and 
the hearing impairment in either one or both ears is service connected) 
in combination with service-connected blindness with bilateral visual 
acuity of 20/200 or less.
    (c) Service-connected total deafness in one ear or bilateral 
deafness rated at 40 percent or more disabling (and the

[[Page 62023]]

hearing impairment in either one or both ears is service connected) in 
combination with service-connected blindness of both eyes having only 
light perception or less.
    (d) Loss of use of both lower extremities together with loss of 
anal and bladder sphincter control. (VA will consider that the 
requirement of loss of anal and bladder sphincter control is met even 
though incontinence has been overcome under a strict regimen of 
rehabilitation training and/or other auxiliary measures.)
    (e) Disabilities entitling the veteran to two or more of the 
monetary rates provided in 38 U.S.C. 1114(l) through (n), without 
considering any disabilities twice.
    (1) Separate and distinct disabilities. Entitlement under this 
paragraph (e) must be based on separate, distinct disabilities.
    (2) Common cause. A common cause of disabilities that are otherwise 
separate and distinct will not preclude entitlement to SMC under this 
paragraph (e). For example, a veteran with service-connected anatomical 
loss or loss of use of both hands and both feet resulting from a common 
cause would nevertheless be entitled to SMC.

(Authority: 38 U.S.C. 1114(o))

    Cross References: Sec.  5.320, ``Determining need for regular 
aid and attendance.'' Sec.  5.322, ``Special monthly compensation--
general information and definitions of disabilities.'' Sec.  5.328, 
``Special monthly compensation under 38 U.S.C. 1114(n).'' Sec.  
5.329; ``Special monthly compensation at the intermediate rate 
between 38 U.S.C. 1114(n) and (o).'' Sec.  5.332, ``Additional 
allowance for regular aid and attendance under 38 U.S.C. 1114(r)(1) 
or for a higher level of care under 38 U.S.C. 1114(r)(2)'' 
(containing criteria based in part on the disabilities listed in 
Sec.  5.330).


Sec.  5.331  Special monthly compensation under 38 U.S.C. 1114(p).

    (a) Intermediate or next higher level of special monthly 
compensation. In the event the veteran's service-connected disabilities 
exceed the requirements for any of the rates prescribed under 
Sec. Sec.  5.324 through 5.329, VA will pay special monthly 
compensation (SMC) under 38 U.S.C. 1114(p) as follows. (An intermediate 
rate authorized by this section is the arithmetic mean between the two 
rates of SMC, rounded down to the next lower dollar.)
    (b) Bilateral blindness in combination with deafness. (1) Blindness 
in both eyes rated under Sec. Sec.  5.324(c), 5.325(d), or 5.326(h) or 
(i), with service-connected total deafness in one ear, entitles the 
veteran to the next higher intermediate rate. If the veteran is already 
entitled to an intermediate rate, the veteran will be entitled to the 
next higher rate under 38 U.S.C. 1114. However, the rate cannot exceed 
the rate under 38 U.S.C. 1114(o).
    (2) Blindness in both eyes rated under Sec. Sec.  5.326(g), 
5.327(e), or 5.328(e) with bilateral deafness (and the hearing 
impairment in either one or both ears is service connected) rated at 10 
percent or 20 percent disabling entitles the veteran to the next higher 
intermediate rate. If the veteran is already entitled to an 
intermediate rate, the veteran will be entitled to the next higher rate 
under 38 U.S.C. 1114. However, the rate cannot exceed the rate under 38 
U.S.C. 1114(o).
    (3) Blindness in both eyes, rated under Sec. Sec.  5.324(c), 
5.325(d), 5.326(g), (h), or (i), 5.327(e), or 5.328(e), with bilateral 
deafness rated at not less than 30 percent disabling (and the hearing 
impairment in one or both ears is service connected) entitles the 
veteran to the next higher rate under 38 U.S.C. 1114. If the veteran is 
already entitled to an intermediate rate, the veteran will be entitled 
to the next higher intermediate rate. However, the rate cannot exceed 
the rate under 38 U.S.C. 1114(o).
    (c) Bilateral blindness in combination with anatomical loss or loss 
of use of a hand or foot. Blindness in both eyes, rated under 
Sec. Sec.  5.324(c), 5.325(d), 5.326(g), (h), or (i), 5.327(e), or 
5.328(e), combined with any of the disabilities described below (in 
paragraphs (c)(1), (2), or (3) of this section).
    (1) Service-connected anatomical loss or loss of use of one hand 
entitles the veteran to the next higher statutory rate under 38 U.S.C. 
1114. If the veteran is already entitled to an intermediate rate, the 
veteran will be entitled to the next higher intermediate rate. However, 
the rate cannot exceed the rate under 38 U.S.C. 1114(o).
    (2) Service-connected anatomical loss or loss of use of one foot 
which by itself or in combination with another compensable disability 
would be ratable at 50 percent or more disabling, entitles the veteran 
to the next higher rate under 38 U.S.C. 1114. If the veteran is already 
entitled to an intermediate rate, the veteran will be entitled to the 
next higher intermediate rate. However, the rate cannot exceed the rate 
under 38 U.S.C. 1114(o).
    (3) Service-connected anatomical loss or loss of use of one foot 
which is ratable at less than 50 percent disabling and which is the 
only compensable disability other than bilateral blindness, entitles 
the veteran to the next higher intermediate rate. If the veteran is 
already entitled to an intermediate rate, the veteran will be entitled 
to the next higher rate under 38 U.S.C. 1114. However, the rate cannot 
exceed the rate under 38 U.S.C. 1114(o).
    (d) Additional independent disability or disabilities ratable at 50 
percent or more disabling. (1) If a veteran is entitled to SMC under 
one of the rates payable under Sec. Sec.  5.324 through 5.329 and also 
has a permanent disability, or combination of permanent disabilities, 
which are independently ratable at 50 percent or more disabling, VA 
will award the veteran SMC at the next higher intermediate rate. If the 
veteran is already entitled to an intermediate rate, VA will award the 
next higher rate under 38 U.S.C. 1114. However, the rate payable 
pursuant to this paragraph cannot exceed the rate under 38 U.S.C. 
1114(o). This benefit may not be paid concurrently with the 100 percent 
rate pursuant to 38 U.S.C. 1114(p) under Sec.  5.331(e).
    (2) ``Independently ratable'' means that the additional disability 
or disabilities ratable at 50 percent or more disabling are separate 
and distinct, and involve different anatomical segments or bodily 
systems, from the disability or disabilities establishing entitlement 
under Sec. Sec.  5.324 through 5.329. If the bases for the additional 
disability or disabilities and the basis for entitlement to SMC under 
Sec. Sec.  5.324 through 5.329 are caused by the same disease or 
injury, VA cannot pay the next higher intermediate rate unless the 
additional disability or disabilities would be rated 50 percent or more 
disabling without regard to the basis for entitlement to SMC under 
Sec. Sec.  5.324 through 5.329.
    (3) Permanent residuals of tuberculosis, and not the graduated 
ratings for arrested tuberculosis, may serve as the basis for the 
independent 50 percent disability rating.
    (e) Additional independent disability ratable at 100 percent. (1) 
If a veteran is entitled to SMC at one of the rates payable under 
Sec. Sec.  5.324 through 5.329 and has a single permanent disability 
that is independently ratable at 100 percent disabling, VA will award 
the veteran the next higher rate under 38 U.S.C. 1114. If the veteran 
is receiving SMC at an intermediate rate, VA will award to the next 
higher intermediate rate. The single permanent disability must be 
independently ratable at 100 percent disabling without regard to 
individual unemployability. The rate assigned under this paragraph 
cannot exceed the rate under 38 U.S.C. 1114(o). It cannot be paid 
concurrently with the 50 percent-or-more rate payable under paragraph 
(d) of this section.
    (2) For the definition of ``in de pen dent ly ratable,'' see 
paragraph (d)(2) of this section.

[[Page 62024]]

    (3) Permanent residuals of tuberculosis, and not the graduated 
ratings for arrested tuberculosis, may serve as the basis for the 
independent 100 percent disability rating.
    (f) Three extremities. Anatomical loss, loss of use, or a 
combination of anatomical loss and loss of use of three extremities 
entitles the veteran to the next higher intermediate rate. If the 
veteran is already entitled to an intermediate rate, the veteran will 
be entitled to the next higher rate under 38 U.S.C. 1114. VA will 
combine the anatomical loss or loss of use of whichever two extremities 
will provide the veteran with the highest level of SMC before combining 
the third anatomical loss or loss of use of an extremity to award the 
next higher rate. However, this combined rate cannot exceed the rate 
under 38 U.S.C. 1114(o). When there is entitlement for triple extremity 
or blindness with extremity, it will be in addition to any entitlement 
under 38 U.S.C. 1114(k) or (p) for the 50 or 100 percent elevations for 
the same extremity.

(Authority: 38 U.S.C. 1114(p))

Sec.  5.332  Additional allowance for regular aid and attendance under 
38 U.S.C. 1114(r)(1) or for a higher level of care under 38 U.S.C. 
1114(r)(2).

    (a) General. The additional allowance that 38 U.S.C. 1114(r) 
authorizes is payable whether the need for regular aid and attendance 
or for a higher level of care is a partial basis for entitlement to the 
maximum rate under 38 U.S.C. 1114(o) or (p), or to the intermediate 
rate between 38 U.S.C. 1114(n) and (o) plus the rate under 38 U.S.C. 
1114(k), or is based on an independent factual determination.
    (b) Criteria for additional allowance under 38 U.S.C. 1114(r)(1). A 
veteran is entitled to an additional allowance under 38 U.S.C. 
1114(r)(1) when all of the following conditions are met:
    (1) The veteran is entitled to the maximum rate under 38 U.S.C. 
1114(o) or (p), or to the intermediate rate between 38 U.S.C. 1114(n) 
and (o) plus the rate under 38 U.S.C. 1114(k);
    (2) The veteran meets the requirements for regular aid and 
attendance under Sec.  5.320; and
    (3) The veteran is not hospitalized at United States Government 
expense.
    (c) Criteria for additional allowance under 38 U.S.C. 1114(r)(2). 
(1) General criteria. A veteran is entitled to an additional allowance 
under 38 U.S.C. 1114(r)(2), instead of the allowance under 38 U.S.C. 
1114(r)(1), when all of the following conditions are met:
    (i) The veteran is entitled to the maximum rate under 38 U.S.C. 
1114(o) or (p), or to the intermediate rate between 38 U.S.C. 1114(n) 
and (o) plus the rate under 38 U.S.C. 1114(k);
    (ii) The veteran meets the requirements for regular aid and 
attendance under Sec.  5.320;
    (iii) The veteran needs a ``higher level of care'' (as defined in 
paragraph (c)(2) of this section);
    (iv) Without the higher level of care, the veteran would require 
hospitalization, nursing home care, or other residential institutional 
care; and
    (v) The veteran is not hospitalized at United States Government 
expense.
    (2) Higher level of care. For the purposes of this section, a 
veteran needs a ``higher level of care'' whenever the veteran requires 
personal healthcare services provided on a daily basis in the veteran's 
residence by a person who is licensed to provide these services or who 
provides these services under the regular supervision of a licensed 
healthcare professional.
    (3) Personal healthcare services. For the purposes of this section, 
``personal healthcare services'' include, but are not limited to, 
physical therapy, administration of injections, placement of indwelling 
catheters, the changing of sterile dressings, or similar functions, the 
performance of which requires professional healthcare training or the 
regular supervision of a trained healthcare professional.
    (4) Licensed healthcare professional. For the purposes of this 
section, a ``licensed healthcare professional'' includes, but is not 
limited to, a doctor of medicine or osteopathy, a registered nurse, a 
licensed practical nurse, or a physical therapist licensed to practice 
by a State or a political subdivision of a State.
    (5) Under the regular supervision of a licensed healthcare 
professional. For the purposes of this section, the term ``under the 
regular supervision of a licensed healthcare professional'' means that 
an unlicensed person performing personal healthcare services is 
following a regimen of personal healthcare services prescribed by a 
healthcare professional, and that the healthcare professional consults 
with the unlicensed person providing the healthcare services at least 
once each month to monitor the prescribed regimen. The consultation 
need not be in person; a telephone call is sufficient.
    (6) Care may be provided by a relative of the veteran or a member 
of the veteran's household. A relative of the veteran or a member of 
the veteran's household may perform the necessary personal healthcare 
services. However, such a person must be a licensed healthcare 
professional or provide the necessary personal healthcare services 
under the regular supervision of a licensed healthcare professional.

(Authority: 38 U.S.C. 1114(r))


Sec.  5.333  Special monthly compensation under 38 U.S.C. 1114(s).

    Special monthly compensation (SMC) under 38 U.S.C. 1114(s) is 
payable to a veteran who has a single service-connected disability 
rated as 100 percent disabling and either:
    (a) An additional service-connected disability, or combination of 
disabilities, ratable as 60 percent disabling independent of the single 
service-connected disability rated as 100 percent; or
    (b) Is permanently housebound as a result of service-connected 
disability or disabilities. For the purposes of this section, a veteran 
is permanently housebound if he or she is substantially confined to his 
or her residence (ward or clinical areas, if institutionalized) and 
immediate premises because of a service-connected disability or 
disabilities, and it is reasonably certain that such disability or 
disabilities will remain throughout the veteran's lifetime.

(Authority: 38 U.S.C. 1114(s))


Sec.  5.334  Special monthly compensation tables.

    (a) General. The tables in this section are meant as aids to 
summarize the statutory or intermediate rate of special monthly 
compensation (SMC) payable to veterans under 38 U.S.C. 1114 for certain 
combinations of disabilities. The regulatory text in Sec. Sec.  5.323 
through 5.333 describes these benefits in more detail. No additional 
rights or benefits are conferred by this section. The tables are 
informative only and will not be used as a basis to grant or deny 
benefits in a particular case.
    (b) Symbols. The following defines the symbols used in the tables 
in this section:

L = the rate under 38 U.S.C. 1114(l).
L\1/2\ = the intermediate rate between 38 U.S.C. 1114(l) and (m).
M = the rate under 38 U.S.C. 1114(m).
M\1/2\ = the intermediate rate between 38 U.S.C. 1114(m) and (n).
N = the rate under 38 U.S.C. 1114(n).
N\1/2\ = the intermediate rate between 38 U.S.C. 1114(n) and (o).
O = the rate under 38 U.S.C 1114(o).

    (c) Usage. In Tables 1 through 4, the columns and rows are labeled 
with specific disabilities or combinations of disabilities. The point 
where a column and row intersect represents the rate or intermediate 
rate of SMC payable for the specified combination of disabilities. For 
example, in Table 1, a veteran who

[[Page 62025]]

has the anatomical loss or loss of use of one leg at a level, or with 
complications, preventing natural knee action with prosthesis in place 
and anatomical loss of one arm so near the shoulder as to prevent the 
use of prosthetic appliances is entitled to the intermediate rate of 
SMC between 38 U.S.C. 1114(m) and (n) (symbol M\1/2\).
    (d) Table 1. To determine the level of SMC payable when there are 
varying degrees of anatomical loss or loss of use of two extremities, 
identify the proper degree of loss for one extremity along the top row 
of Table 1 and the proper degree of loss for the other extremity down 
the left column. The square where the column and row intersect contains 
the symbol for the level of SMC payable and the regulatory citation 
that supports it.

                                                             Table 1--SMC--Extremities Only
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Anatomical loss  Anatomical loss
                                                    Anatomical loss  Anatomical loss  or loss of use:  or loss of use:  Anatomical loss  Anatomical loss
                    Extremities                     or loss of use:  or loss of use:    one leg & no     one arm & no     of one leg:      of one arm:
                                                        one foot         one hand       knee action      elbow action       near hip      near shoulder
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anatomical loss or loss of use: one foot..........               L                L           L\1/2\           L\1/2\                M                M
                                                    Sec.   5.324(a)  Sec.   5.324(b)  Sec.   5.325(a)  Sec.   5.325(b)  Sec.   5.326(c)  Sec.   5.326(d)
Anatomical loss or loss of use: one hand..........               L                M           L\1/2\           M\1/2\                M                N
                                                    Sec.   5.324(b)  Sec.   5.326(a)  Sec.   5.325(c)  Sec.   5.327(a)  Sec.   5.326(f)  Sec.   5.328(b)
Anatomical loss or loss of use: one leg & no knee           L\1/2\           L\1/2\                M                M           M\1/2\           M\1/2\
 action...........................................  Sec.   5.325(a)  Sec.   5.325(c)  Sec.   5.326(b)  Sec.   5.326(e)  Sec.   5.327(b)  Sec.   5.327(c)
Anatomical loss or loss of use: one arm & no elbow          L\1/2\           M\1/2\                M                N           M\1/2\           N\1/2\
 action...........................................  Sec.   5.325(b)  Sec.   5.327(a)  Sec.   5.326(e)  Sec.   5.328(a)  Sec.   5.327(d)    Sec.   5.329
Anatomical loss of one leg: near hip..............               M                M           M\1/2\           M\1/2\                N                N
                                                    Sec.   5.326(c)  Sec.   5.326(f)  Sec.   5.327(b)  Sec.   5.327(d)  Sec.   5.328(c)  Sec.   5.328(d)
Anatomical loss of one arm: near shoulder.........               M                N           M\1/2\           N\1/2\                N                O
                                                    Sec.   5.326(d)  Sec.   5.328(b)  Sec.   5.327(c)    Sec.   5.329   Sec.   5.328(d)  Sec.   5.330(a)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (e) Table 2. To determine the level of SMC payable when there are 
varying degrees of blindness in both eyes, identify the proper degree 
of blindness for one eye down the left column of Table 2 and the proper 
degree of blindness for the other eye along the top row. The square 
where the column and row intersect contains the symbol for the level of 
SMC payable and the regulatory citation that supports it.

                                                        Table 2--SMC Based on Bilateral Blindness
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Vision in other eye
                                                                    ------------------------------------------------------------------------------------
                         Vision in one eye                            Visual acuity     Visual field
                                                                       of 5/200 or     contraction to       Light           No light     Anatomical loss
                                                                           less        5[deg] or less  perception only     perception         of eye
--------------------------------------------------------------------------------------------------------------------------------------------------------
Visual acuity of 5/200 or less.....................................               L                L           L\1/2\                M                M
                                                                     Sec.   5.324(c)  Sec.   5.324(c)  Sec.   5.325(d)  Sec.   5.326(h)  Sec.   5.326(h)
Visual field contraction to 5[deg] or less.........................               L                L           L\1/2\                M                M
                                                                     Sec.   5.324(c)  Sec.   5.324(c)  Sec.   5.325(d)  Sec.   5.326(h)  Sec.   5.326(h)
Light perception only..............................................          L\1/2\           L\1/2\                M             M1/2           M\1/2\
                                                                     Sec.   5.325(d)  Sec.   5.325(d)  Sec.   5.326(g)  Sec.   5.327(e)  Sec.   5.327(e)
No light perception................................................               M                M           M\1/2\                N                N
                                                                     Sec.   5.326(h)  Sec.   5.326(h)  Sec.   5.327(e)  Sec.   5.328(e)  Sec.   5.328(e)
Anatomical loss of eye.............................................               M                M           M\1/2\                N                N
                                                                     Sec.   5.326(h)  Sec.   5.326(h)  Sec.   5.327(e)  Sec.   5.328(e)  Sec.   5.328(e)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (f) Table 3. To determine the level of SMC when there is bilateral 
blindness together with anatomical loss or loss of use of an extremity, 
identify the level of SMC for bilateral blindness from Table 3 and 
locate it along the top row. Then identify the proper extremity loss 
down the left column. The square where the column and row intersect 
contains the symbol for the level of SMC payable and the regulatory 
citation that supports it.

[[Page 62026]]



                                   Table 3--SMC--Bilateral Blindness With Anatomical Loss or Loss of Use of Extremity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              SMC for bilateral blindness alone
                       Additional disability                        ------------------------------------------------------------------------------------
                                                                          ``L''          ``L\1/2\''         ``M''          ``M\1/2\''         ``N''
--------------------------------------------------------------------------------------------------------------------------------------------------------
Service-connected anatomical loss or loss of use of one foot rated       L\1/2\ + K            M + K       M\1/2\ + K            N + K       N\1/2\ + K
 less than 50%, and it is the only compensable disability other                   L                L                L                L                L
 than blindness....................................................            Sec.             Sec.             Sec.             Sec.             Sec.
                                                                       5.331(c)(3);     5.331(c)(3);     5.331(c)(3);     5.331(c)(3);     5.331(c)(3);
                                                                               Sec.             Sec.             Sec.             Sec.             Sec.
                                                                        5.323(b)(2)      5.323(b)(2)      5.323(b)(2)      5.323(b)(2)      5.323(b)(2)
Service-connected anatomical loss or loss of use of one foot rated            M + K       M\1/2\ + K            N + K       N\1/2\ + K                O
 50% or more, either alone or in combination with another                         L                L                L                L                L
 disability........................................................            Sec.             Sec.             Sec.             Sec.             Sec.
                                                                       5.331(c)(2);     5.331(c)(2);     5.331(c)(2);     5.331(c)(2);     5.331(c)(2);
                                                                               Sec.             Sec.             Sec.             Sec.
                                                                        5.323(b)(2)      5.323(b)(2)      5.323(b)(2)      5.323(b)(2)
Service-connected anatomical loss or loss of use of one hand.......           M + K       M\1/2\ + K            N + K       N\1/2\ + K                O
                                                                                  L                L                L                L                L
                                                                               Sec.             Sec.             Sec.             Sec.             Sec.
                                                                       5.331(c)(1);     5.331(c)(1);     5.331(c)(1);     5.331(c)(1);      5.331(c)(1)
                                                                               Sec.             Sec.             Sec.             Sec.
                                                                        5.323(b)(2)      5.323(b)(2)      5.323(b)(2)      5.323(b)(2)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (g) Table 4. To determine the level of SMC when there is bilateral 
blindness together with deafness, identify the level of SMC for 
bilateral blindness from Table 4 and locate it along the top row. Then 
identify the proper degree of deafness down the left column. The square 
where the column and row intersect contains the symbol for the level of 
SMC payable and the regulatory citation that supports it.

                                        Table 4--Special Monthly Compensation--Bilateral Blindness With Deafness
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      SMC for bilateral blindness alone
                                                   -----------------------------------------------------------------------------------------------------
               Additional disability                                                    ``M''  under
                                                         ``L''          ``L\1/2\''    Sec.   5.326(h)    ``M''  under      ``M\1/2\''         ``N''
                                                                                           or (i)      Sec.   5.326(g)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Service-connected (SC) total deafness in one ear..          L\1/2\                M           M\1/2\                O                O                O
                                                              Sec.             Sec.             Sec.   Sec.   5.330(c)  Sec.   5.330(c)  Sec.   5.330(c)
                                                       5.331(b)(1)      5.331(b)(1)      5.331(b)(1)
Bilateral deafness rated 10% or 20% (one or both    L No additional  L No additional  L No additional          M\1/2\                N           N\1/2\
 ears SC).........................................              SMC              SMC              SMC            Sec.             Sec.             Sec.
                                                                                                          5.331(b)(2)      5.331(b)(2)      5.331(b)(2)
Bilateral deafness rated 30% (one or both ears SC)               M           M\1/2\                N                N           N\1/2\                O
                                                              Sec.             Sec.             Sec.             Sec.             Sec.             Sec.
                                                       5.331(b)(3)      5.331(b)(3)      5.331(b)(3)      5.331(b)(3)      5.331(b)(3)      5.331(b)(3)
Bilateral deafness rated 40% or 50% (one or both                 M           M\1/2\                N                O                O                O
 ears SC).........................................            Sec.             Sec.             Sec.   Sec.   5.330(c)  Sec.   5.330(c)  Sec.   5.330(c)
                                                       5.331(b)(3)      5.331(b)(3)      5.331(b)(3)
Bilateral deafness rated 60% or more (one or both                O                O                O                O                O                O
 ears SC).........................................  Sec.   5.330(b)  Sec.   5.330(b)  Sec.   5.330(b)  Sec.   5.330(b)  Sec.   5.330(b)  Sec.   5.330(b)
--------------------------------------------------------------------------------------------------------------------------------------------------------

(Authority: 38 U.S.C. 1114)

Sec.  5.335  Effective dates--Special monthly compensation under 
Sec. Sec.  5.332 and 5.333.

    (a) General Rule. Except as provided in Sec.  3.400(o)(2) of this 
chapter (regarding effective dates for increased disability), and in 
paragraph (b) of this section, the effective date for an award of 
special monthly compensation (SMC) under Sec. Sec.  5.332, ``Additional 
allowance for regular aid and attendance under 38 U.S.C. 1114(r)(1) or 
for a higher level of care under 38 U.S.C. 1114(r)(2),'' or 5.333, 
``Special monthly compensation under 38 U.S.C. 1114(s),'' will be the 
date of receipt of the claim or the date entitlement arose, whichever 
is later.
    (b) Retroactive award of SMC. When VA awards disability 
compensation, based on an original or reopened claim, for a retroactive 
period, VA will also award SMC for all or any part(s) of that 
retroactive period during which the veteran met the eligibility 
requirements for SMC.

(Authority: 38 U.S.C. 5110(a), (b))

Sec.  5.336  Effective dates--additional compensation for regular aid 
and attendance payable for a veteran's spouse under Sec.  5.321.

    (a) Award of regular aid and attendance. (1) The effective date for 
an award of additional compensation payable to a veteran because of the 
veteran's spouse's need for regular aid and attendance will be the date 
of receipt of the claim or the date entitlement arose, whichever is 
later.
    (2) When disability compensation, based on an original or reopened 
claim, is awarded retroactive to an effective date prior to the date of 
receipt of the

[[Page 62027]]

claim, regular aid and attendance for the spouse will also be awarded 
for any part of the prior period for which entitlement to regular aid 
and attendance for the spouse is established.
    (b) Discontinuance of award of regular aid and attendance. The 
effective date for the discontinuance of regular aid and attendance 
will be the end of the month in which VA stops paying the aid and 
attendance.

    Cross References: Sec.  3.501(b)(3) of this chapter, ``Veterans 
[effective dates for reduction or discontinuance of benefits].''

(Authority: 38 U.S.C. 501, 5110(b)(1), (2))


Sec.  5.337  Award of special monthly compensation based on the need 
for regular aid and attendance during period of hospitalization.

    An award of special monthly compensation (SMC) based on a need for 
regular aid and attendance under Sec.  5.324, ``Special monthly 
compensation under 38 U.S.C. 1114(l),'' that is made for a period 
during which the veteran is or was receiving hospital, institutional, 
or domiciliary care at VA expense will be effective on the date of 
discharge or release from hospitalization. If the award is retroactive, 
VA will not provide compensation based on the need for regular aid and 
attendance for the period during which the veteran was receiving 
hospital, institutional, or domiciliary care at VA expense.


Sec. Sec.  5.338-5.339  [Reserved]

Tuberculosis


Sec.  5.340  Pulmonary tuberculosis shown by X-ray in active service.

    (a) Active disease. X-ray evidence alone may be adequate for grant 
of direct service connection for pulmonary tuberculosis. When under 
consideration, all available service department films and subsequent 
films will be secured and read by specialists at designated stations 
who should have a current examination report and X-ray. Resulting 
interpretations of service films will be accorded the same 
consideration for service connection purposes as if clinically 
established, however, a compensable rating will not be assigned prior 
to establishment of an active condition by approved methods.
    (b) Inactive disease. Where the veteran was examined at the time of 
entrance into active service but no X-ray was made, or if made, is not 
available and there was no notation or other evidence of active or 
inactive re-infection type pulmonary tuberculosis existing prior to 
such entrance, it will be assumed that the condition occurred during 
service and direct service connection will be in order for inactive 
pulmonary tuberculosis shown by X-ray evidence during service in the 
manner prescribed in paragraph (a) of this section, unless lesions are 
first shown so soon after entry on active service as to compel the 
conclusion, on the basis of sound medical principles, that they existed 
prior to entry on active service.
    (c) Primary lesions. Healed primary type tuberculosis shown at the 
time of entrance into active service will not be taken as evidence to 
rebut direct or presumptive service connection for active re-infection 
type pulmonary tuberculosis.

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

Sec.  5.341  Presumptive service connection for tuberculous disease; 
wartime and service after December 31, 1946.

    (a) Pulmonary tuberculosis. (1) Evidence of activity on comparative 
study of X-ray films showing pulmonary tuberculosis within the 3-year 
presumptive period provided by Sec.  5.261(d) will be taken as 
establishing service connection for active pulmonary tuberculosis 
subsequently diagnosed by approved methods but service connection and 
rating may be assigned only from the date of such diagnosis or other 
evidence of clinical activity.
    (2) A notation of inactive tuberculosis of the re-infection type at 
induction or enlistment definitely prevents the grant of service 
connection under Sec.  5.261 for active tuberculosis, regardless of the 
fact that it was shown within the appropriate presumptive period.
    (b) Pleurisy with effusion without obvious cause. Pleurisy with 
effusion with evidence of diagnostic studies ruling out obvious 
nontuberculous causes will qualify as active tuberculosis. The 
requirements for presumptive service connection will be the same as 
those for tuberculous pleurisy.
    (c) Tuberculous pleurisy and endobronchial tuberculosis. 
Tuberculous pleurisy and endobronchial tuberculosis fall within the 
category of pulmonary tuberculosis for the purpose of service 
connection on a presumptive basis. Either will be held incurred in 
service when initially manifested within the 3-year presumptive period 
provided by Sec.  5.261(d).
    (d) Miliary tuberculosis. Service connection for miliary 
tuberculosis involving the lungs is to be determined in the same manner 
as for other active pulmonary tuberculosis.

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


Sec.  5.342  Initial grant following inactivity of tuberculosis.

    When service connection is granted initially on an original or 
reopened claim for pulmonary or nonpulmonary tuberculosis and there is 
satisfactory evidence that the condition was active previously but is 
now inactive (arrested), it will be presumed that the disease continued 
to be active for 1 year after the last date of established activity, 
provided there is no evidence to establish activity or inactivity in 
the intervening period. For a veteran entitled to receive compensation 
on August 19, 1968, the beginning date of graduated ratings will 
commence at the end of the 1-year period. For a veteran who was not 
receiving or entitled to receive compensation on August 19, 1968, 
ratings will be assigned in accordance with the Schedule for Rating 
Disabilities in part 4 of this chapter. This section is not applicable 
to running award cases.

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


Sec.  5.343  Effect of diagnosis of active tuberculosis.

    (a) Service diagnosis. Service department diagnosis of active 
pulmonary tuberculosis will be accepted unless a board of medical 
examiners, a Clinic Director, or Chief, Outpatient Service certifies, 
after considering all the evidence, including the favoring or opposing 
tuberculosis and activity, that such diagnosis was incorrect. Doubtful 
cases may be referred to the Under Secretary for Health in Central 
Office.
    (b) Department of Veterans Affairs diagnosis. Diagnosis of active 
pulmonary tuberculosis by the medical authorities of VA as the result 
of examination, observation, or treatment will be accepted for rating 
purposes. In a case where there is no such diagnosis, but there is 
evidence that the veteran has tuberculosis, the case will be referred 
to the Clinic Director or Chief, Outpatient Service, and, if necessary, 
to the Under Secretary for Health in Central Office.
    (c) Private physician's diagnosis. Diagnosis of active pulmonary 
tuberculosis by private physicians based on their examination, 
observation or treatment will not be accepted to show the disease was 
initially manifested within the presumptive period after discharge from 
active service unless confirmed by acceptable clinical, X-ray or 
laboratory studies, or by findings of active tuberculosis based upon 
acceptable hospital observation or treatment.

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

[[Page 62028]]

Sec.  5.344  Determination of inactivity (complete arrest) of 
tuberculosis.

    (a) Pulmonary tuberculosis. A veteran shown to have had pulmonary 
tuberculosis will be held to have reached a condition of ``complete 
arrest'' when a diagnosis of inactive is made.
    (b) Nonpulmonary disease. Determination of complete arrest of 
nonpulmonary tuberculosis requires absence of evidence of activity for 
6 months. If there are two or more foci of such tuberculosis, one of 
which is active, the condition will not be considered to be inactive 
until the tuberculous process has reached arrest in its entirety.
    (c) Arrest following surgery. Where there has been surgical 
excision of the lesion or organ, the date of complete arrest will be 
the date of discharge from the hospital, or 6 months from the date of 
excision, whichever is later.

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


Sec.  5.345  Changes from activity in pulmonary tuberculosis pension 
cases.

    A permanent and total disability rating in effect during 
hospitalization will not be discontinued before hospital discharge 
based on a change in classification from active. At hospital discharge, 
the permanent and total rating will be discontinued unless the medical 
evidence does not support a finding of complete arrest (see Sec.  
5.344) or where complete arrest is shown but the medical authorities 
recommend that employment not be resumed or be resumed only for short 
hours (not more than 4 hours a day for a 5-day week). If either of the 
two aforementioned conditions is met, discontinuance will be deferred 
pending examination in 6 months. Although complete arrest may be 
established upon that examination, the permanent and total rating may 
be extended for a further period of 6 months provided the veteran's 
employment is limited to short hours as recommended by the medical 
authorities (not more than 4 hours a day for a 5-day week). Similar 
extensions may be granted under the same conditions at the end of 12 
and 18-month periods. At the expiration of 24 months after 
hospitalization, the case will be considered under Sec.  3.321(b) of 
this chapter if continued short hours of employment are recommended or 
if other evidence warrants submission.

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


Sec.  5.346  Tuberculosis and compensation under 38 U.S.C. 1114(q) and 
1156.

    (a) General. Any veteran who, on August 19, 1968, was receiving or 
entitled to receive compensation for active or inactive (arrested) 
tuberculosis may receive compensation under 38 U.S.C. 1114(q) and 1156 
as in effect before August 20, 1968.
    (b) Special monthly compensation (SMC) under 38 U.S.C. 1114(q) for 
inactive tuberculosis (complete arrest). (1)(i) For a veteran who was 
receiving or entitled to receive compensation for tuberculosis on 
August 19, 1968, the minimum monthly rate is $67. This minimum SMC is 
not to be combined with or added to any other disability compensation. 
The rating criteria for determining inactivity of tuberculosis are set 
out in Sec.  5.344.
    (ii) The effective date for special monthly compensation (SMC) 
under paragraph (b)(1)(i) of this section will be the date the 
graduated rating of the disability or compensation for that degree of 
disablement combined with other service-connected disabilities provides 
compensation payable at a rate less than $67.
    (2) For a veteran who was not receiving or entitled to receive 
compensation for tuberculosis on August 19, 1968, the SMC authorized by 
paragraph (b)(1) of this section is not payable.

(Authority: 38 U.S.C. 501(a); Pub. L. 90-493, 82 Stat. 809)


Sec.  5.347  Continuance of a total disability rating for service-
connected tuberculosis.

    In service-connected cases, ratings for active or inactive 
tuberculosis will be governed by the Schedule for Rating Disabilities 
in part 4 of this chapter. Where in the opinion of the agency of 
original jurisdiction the veteran at the expiration of the period 
during which a total rating is provided will not be able to maintain 
inactivity of the disease process under the ordinary conditions of 
life, the case will be submitted under Sec.  3.321(b) of this chapter.

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


Sec. Sec.  5.348-5.349  [Reserved]

Injury or Death Due to Hospitalization or Treatment


Sec.  5.350  Benefits under 38 U.S.C. 1151(a) for additional disability 
or death due to hospital care, medical or surgical treatment, 
examination, training and rehabilitation services, or compensated work 
therapy program.

    (a) Claims subject to this section. (1) General. Except as provided 
in paragraph (a)(2) of this section, this section applies to claims 
received by VA after September 30, 1997. This includes original claims 
and claims to reopen or otherwise readjudicate a previous claim for 
benefits under 38 U.S.C. 1151 or its predecessors. The effective date 
of benefits is subject to Sec.  5.351. For claims received by VA before 
October 1, 1997, see Sec.  3.358 of this chapter.
    (2) Compensated Work Therapy. With respect to claims alleging 
disability or death due to compensated work therapy, this section 
applies to claims that were pending before VA on November 1, 2000, or 
that were received by VA after that date. The effective date of 
benefits is subject to Sec. Sec.  5.152(a) and 5.351, and shall not be 
earlier than November 1, 2000.
    (b) Determining whether a veteran has an additional disability. To 
determine whether a veteran has an additional disability, VA will 
compare the veteran's condition immediately before the beginning of the 
hospital care, medical or surgical treatment, examination, training and 
rehabilitation services, or compensated work therapy (CWT) program upon 
which the claim is based to the veteran's condition after such care, 
treatment, examination, services, or program has stopped. VA considers 
each involved body part or system separately.
    (c) Establishing the cause of additional disability or death. 
Claims based on additional disability or death due to hospital care, 
medical or surgical treatment, or examination must meet the causation 
requirements of this paragraph and paragraph (d)(1) or (d)(2) of this 
section. Claims based on additional disability or death due to training 
and rehabilitation services or CWT program must meet the causation 
requirements of paragraph (d)(3) of this section.
    (1) Actual causation required. To establish causation, the evidence 
must show that the hospital care, medical or surgical treatment, or 
examination resulted in the veteran's additional disability or death. 
Merely showing that a veteran received care, treatment, or examination 
and that the veteran has an additional disability or died does not 
establish cause.
    (2) Continuance or natural progress of injury or disease. Hospital 
care, medical or surgical treatment, or examination cannot cause the 
continuance or natural progress of injury or disease for which the 
care, treatment, or examination was furnished unless VA's failure to 
timely diagnose and properly treat the disease or injury proximately 
caused the continuance or natural progress. The provision of training 
and rehabilitation services or CWT program cannot cause the continuance 
or natural progress of injury or disease for which the services were 
provided.
    (3) Veteran's failure to follow medical instructions. Additional 
disability or death caused by a veteran's failure to

[[Page 62029]]

follow properly given medical instructions is not caused by hospital 
care, medical or surgical treatment, or examination.
    (d) Establishing the proximate cause of additional disability or 
death. The proximate cause of disability or death is the action or 
event that directly caused the disability or death, as distinguished 
from a remote contributing cause.
    (1) Care, treatment, or examination. To establish that 
carelessness, negligence, lack of proper skill, error in judgment, or 
similar instance of fault on VA's part in furnishing hospital care, 
medical or surgical treatment, or examination proximately caused a 
veteran's additional disability or death, it must be shown that the 
hospital care, medical or surgical treatment, or examination caused the 
veteran's additional disability or death (as explained in paragraph (c) 
of this section); and
    (i) VA failed to exercise the degree of care that would be expected 
of a reasonable healthcare provider; or
    (ii) VA furnished the hospital care, medical or surgical treatment, 
or examination without the veteran's or, in appropriate cases, the 
veteran's representative's informed consent. To determine whether there 
was informed consent, VA will consider whether the healthcare providers 
substantially complied with the requirements of Sec.  17.32 of this 
chapter. Minor deviations from the requirements of Sec.  17.32 of this 
chapter that are immaterial under the circumstances of a case will not 
defeat a finding of informed consent. Consent may be express (i.e., 
given orally or in writing) or implied under the circumstances 
specified in Sec.  17.32(b) of this chapter, as in emergency 
situations.
    (2) Events not reasonably foreseeable. Whether the proximate cause 
of a veteran's additional disability or death was an event not 
reasonably foreseeable is in each claim to be determined based on what 
a reasonable health care provider would have foreseen. The event need 
not be completely unforeseeable or unimaginable but must be one that a 
reasonable healthcare provider would not have considered an ordinary 
risk of the treatment provided. In determining whether an event was 
reasonably foreseeable, VA will consider whether the risk of that event 
was the type of risk that a reasonable health care provider would have 
disclosed in connection with the informed consent procedures of Sec.  
17.32 of this chapter.
    (3) Training and rehabilitation services or compensated work 
therapy program. To establish that the provision of training and 
rehabilitation services or a CWT program proximately caused a veteran's 
additional disability or death, it must be shown that the veteran's 
participation in an essential activity or function of the training, 
services, or CWT program provided or authorized by VA proximately 
caused the disability or death. The veteran must have been 
participating in such training, services, or CWT program provided or 
authorized by VA as part of an approved rehabilitation program under 38 
U.S.C. chapter 31 or as part of a CWT program under 38 U.S.C. 1718. It 
need not be shown that VA approved that specific activity or function, 
as long as the activity or function is generally accepted as being a 
necessary component of the training, services, or CWT program that VA 
provided or authorized.
    (e) Department employees and facilities. (1) A Department employee 
is an individual:
    (i) Who is appointed by the Department in the civil service under 
title 38, United States Code, or title 5, United States Code, as an 
employee as defined in 5 U.S.C. 2105;
    (ii) Who is engaged in furnishing hospital care, medical or 
surgical treatment, or examinations under authority of law; and
    (iii) Whose day-to-day activities are subject to supervision by the 
Secretary of Veterans Affairs.
    (2) A Department facility is a facility over which the Secretary of 
Veterans Affairs has direct jurisdiction.
    (f) Activities that are not hospital care, medical or surgical 
treatment, or examination furnished by a Department employee or in a 
Department facility. The following are not hospital care, medical or 
surgical treatment, or examination furnished by a Department employee 
or in a Department facility within the meaning of 38 U.S.C. 1151(a):
    (1) Hospital care or medical services furnished under a contract 
made under 38 U.S.C. 1703.
    (2) Nursing home care furnished under 38 U.S.C. 1720.
    (3) Hospital care or medical services, including, but not limited 
to, examination, provided under 38 U.S.C. 8153, in a facility over 
which the Secretary does not have direct jurisdiction.
    (g) Benefits payable under 38 U.S.C. 1151 for a veteran's death 
after December 31, 1956. The benefit payable under 38 U.S.C. 1151(a) to 
an eligible survivor for a veteran's death occurring after December 31, 
1956, is dependency and indemnity compensation.

(Authority: 38 U.S.C. 1151)


Sec.  5.351  Effective dates for awards of benefits under 38 U.S.C. 
1151(a).

    The effective date for the award of compensation under Sec.  5.350 
based on additional disability or death due to hospitalization, medical 
or surgical treatment, examinations, vocational rehabilitation 
training, or compensated work therapy will be one of the following:
    (a) Disability. Date injury or aggravation was suffered if a claim 
is received within one year after that date; otherwise, date of receipt 
of the claim.
    (b) Death. First day of the month in which the veteran's death 
occurred, if a claim is received within one year after the date of 
death; otherwise, date of receipt of the claim.
    (c) Compensated work therapy. For an award of compensation under 
Sec.  5.350 based on additional disability or death due to compensated 
work therapy, see also Sec.  5.350(a)(2).

(Authority: 38 U.S.C. 5110(c))


Sec.  5.352  Effect on benefits awarded under 38 U.S.C. 1151(a) of 
Federal Tort Claims Act compromises, settlements, and judgments entered 
after November 30, 1962.

    (a) Claims subject to this section. This section applies to claims 
received by VA after September 30, 1997. This includes original claims 
and claims to reopen or otherwise readjudicate a previous claim for 
benefits under 38 U.S.C. 1151(a) or its predecessors.
    (b) Offset of veterans' awards of compensation. If a veteran's 
disability is the basis of a judgment under 28 U.S.C. 1346(b) awarded, 
or a settlement or compromise under 28 U.S.C. 2672 or 2677 entered, 
after November 30, 1962, the amount to be offset under 38 U.S.C. 
1151(b) from any compensation awarded under 38 U.S.C. 1151(a) is the 
entire amount of the veteran's share of the judgment, settlement, or 
compromise, including the veteran's proportional share of attorney 
fees.
    (c) Offset of survivors' awards of dependency and indemnity 
compensation. If a veteran's death is the basis of a judgment under 28 
U.S.C. 1346(b) awarded, or a settlement or compromise under 28 U.S.C. 
2672 or 2677 entered, after November 30, 1962, the amount to be offset 
under 38 U.S.C. 1151(b) from any dependency and indemnity compensation 
awarded under 38 U.S.C. 1151(a) to a survivor is only the amount of the 
judgment, settlement, or compromise representing damages for the 
veteran's death the survivor receives in an individual capacity or as 
distribution from the decedent veteran's estate of sums included in the 
judgment, settlement, or compromise to compensate for harm

[[Page 62030]]

suffered by the survivor, plus the survivor's proportional share of 
attorney fees.
    (d) Offset of structured settlements. This paragraph applies if a 
veteran's disability or death is the basis of a structured settlement 
or structured compromise under 28 U.S.C. 2672 or 2677 entered after 
November 30, 1962.
    (1) The amount to be offset. The amount to be offset under 38 
U.S.C. 1151(b) from benefits awarded under 38 U.S.C. 1151(a) is the 
veteran's or survivor's proportional share of the cost to the United 
States of the settlement or compromise, including the veteran's or 
survivor's proportional share of attorney fees.
    (2) When the offset begins. The offset of benefits awarded under 38 
U.S.C. 1151(a) begins the first month after the structured settlement 
or structured compromise has become final that such benefits would 
otherwise be paid.

(Authority: 38 U.S.C. 1151)


Sec.  5.353  Effect on benefits awarded under 38 U.S.C. 1151(a) of 
Federal Tort Claims Act administrative awards, compromises, 
settlements, and judgments finalized before December 1, 1962.

    (a) Claims subject to this section. This section applies to claims 
received by VA after September 30, 1997. This includes original claims 
and claims to reopen or otherwise readjudicate a previous claim for 
benefits under 38 U.S.C. 1151(a) or its predecessors.
    (b) Effect of administrative awards, compromises, settlements, or 
judgments. If a veteran's disability or death was the basis of an 
administrative award under 28 U.S.C. 1346(b) made, or a settlement or 
compromise under 28 U.S.C. 2672 or 2677 finalized, before December 1, 
1962, VA may not award benefits under 38 U.S.C. 1151(a) for any period 
after such award, settlement, or compromise was made or became final. 
If a veteran's disability or death was the basis of a judgment under 28 
U.S.C. 1346(b) that became final before December 1, 1962, VA may award 
benefits under 38 U.S.C. 1151(a) for the disability or death unless the 
terms of the judgment provide otherwise.

(Authority: 38 U.S.C. 1151)


Sec. Sec.  5.354-5.359  [Reserved]

Ratings for Healthcare Eligibility Only


Sec.  5.360  Service connection of dental conditions for treatment 
purposes.

    (a) General Principles. Eligibility requirements for dental 
treatment are set forth in Sec.  17.161 of this chapter.
    (b) Conditions service connected for treatment purposes. VA will 
not pay compensation for any of the following dental conditions; 
however, these conditions may be service connected solely for providing 
outpatient dental treatment:
    (1) Treatable carious teeth.
    (2) Replaceable missing teeth.
    (3) Dental or alveolar abscesses.
    (4) Chronic periodontal disease.
    (c) Conditions not service connected for treatment purposes. The 
following conditions will not be service connected for outpatient 
dental treatment purposes:
    (1) Calculus.
    (2) Acute periodontal disease.
    (3) Teeth noted at entry as nonrestorable, regardless of treatment 
during service.
    (4) Teeth noted as missing at entry, regardless of treatment during 
service.
    (d) Rating principles. VA will determine service connection for 
establishing eligibility for outpatient dental treatment using the 
following principles:
    (1) VA will consider each defective or missing tooth and each 
disease of the teeth and periodontal tissues separately to determine 
whether the condition was incurred or aggravated in line of duty during 
active service.
    (2) VA will determine whether the condition is due to combat or 
other in-service trauma.
    (3) VA will consider whether the veteran was interned as a prisoner 
of war.
    (4) VA will consider the condition of teeth and periodontal tissues 
at the time of entry into active duty.
    (e) Aggravation. Notations of conditions made at entry to service 
and treatment of such conditions during service (including, but not 
limited to, fillings, extractions, and placement of a prosthesis) will 
not be considered as evidence of aggravation, unless additional 
pathology developed after 180 days or more of active military service.
    (1) Teeth noted as normal at entry will be service connected for 
treatment purposes if they were filled or extracted after 180 days or 
more of active military service.
    (2) Teeth noted as filled at entry will be service connected for 
treatment purposes if they were extracted, or if the existing filling 
was replaced, after 180 days or more of active military service.
    (3) Teeth noted as carious but restorable at entry will not be 
service connected for treatment purposes on the basis that they were 
filled during service. Service connection may be established for 
treatment purposes if new caries developed 180 days or more after such 
teeth were filled.
    (4) Teeth noted as carious but restorable at entry will be service 
connected for treatment purposes if extraction was required after 180 
days or more of active military service.
    (5) Third molars will not be service connected for treatment 
purposes unless disease or pathology of the tooth developed after 180 
days or more of active military service, or was due to combat or in-
service trauma.
    (6) Impacted or malposed teeth and other developmental defects will 
not be service connected for treatment purposes unless disease or 
pathology of the teeth developed after 180 days or more of active 
military service.
    (7) Teeth extracted because of chronic periodontal disease will be 
service connected for treatment purposes only if they were extracted 
after 180 days or more of active military service.

(Authority: 38 U.S.C. 1712)


Sec.  5.361  Healthcare eligibility of persons administratively 
discharged under other-than-honorable conditions.

    (a) General. VA will provide healthcare and related benefits 
authorized by chapter 17 of title 38 U.S.C. to certain former service 
persons with administrative discharges under other-than-honorable 
conditions for any disability incurred or aggravated during active 
military service in line of duty.
    (b) Eligibility criteria. VA will use the same eligibility criteria 
that are applicable to determinations of incurrence in service and of 
incurrence in the line of duty when there is no character of discharge 
bar to determine a claimant's health-care eligibility.
    (c) Characterization of discharge. VA will not furnish healthcare 
and related benefits for any disability incurred in or aggravated 
during a period of service terminated by a bad conduct discharge or 
when one of the character of discharge bars listed in Sec.  3.12(c) of 
this chapter applies.

(Authority: Pub. L. 95-126, 91 Stat. 1106)


Sec.  5.362  Presumption of service incurrence of active psychosis for 
purposes of hospital, nursing home, domiciliary, and medical care.

    (a) Presumption of service incurrence for active psychosis. For 
purposes of determining eligibility for hospital, nursing home, 
domiciliary, and medical care under chapter 17 of title 38, United 
States Code, VA will presume incurred in active military service any 
active psychosis developed by a veteran under the circumstances 
described in paragraph (b) of this section.
    (b) Requirements. In order to be entitled to a presumption of 
service incurrence for active psychosis for purposes of this section, a 
veteran must have served during one of the periods of

[[Page 62031]]

war specified in the following table and developed the psychosis within 
two years after discharge from active military service and before the 
date specified in the following table that corresponds to the period of 
war during which the veteran served.

------------------------------------------------------------------------
                                             Must have developed active
                                             psychosis  within two years
        Veterans who served during:         after  discharge from active
                                            military service and before:
------------------------------------------------------------------------
World War II..............................  July 26, 1949.
Korean conflict...........................  February 1, 1957.
Vietnam era...............................  May 8, 1977.
Persian Gulf War..........................  The end of two-year period
                                             beginning on the last day
                                             of the Persian Gulf War.
------------------------------------------------------------------------

    Cross Reference: Sec.  5.20, ``Dates of periods of war.''

(Authority: 38 U.S.C. 101(16), 105, 501(a), 1702)


Sec.  5.363  Determination of service connection for former members of 
the Armed Forces of Czechoslovakia or Poland.

    The agency of original jurisdiction will determine whether the 
condition for which treatment is claimed by former members of the Armed 
Forces of Czechoslovakia or Poland under 38 U.S.C. 109(c) is service 
connected. This determination will be made using the same criteria that 
apply to determinations of service connection based on service in the 
Armed Forces of the United States.

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


Sec.  5.364  [Reserved]

Miscellaneous Service-Connection Regulations


Sec.  5.365  Claims based on the effects of tobacco products.

    (a) Except as provided in paragraph (b) of this section, a 
disability or death will not be service connected on any basis, 
including secondary service connection under Sec.  3.310 of this 
chapter, if it resulted from injury or disease attributable to the 
veteran's use during service of tobacco products, such as cigars, 
cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.
    (b) Paragraph (a) of this section does not prohibit service 
connection if any of the following are true:
    (1) The disability or death resulted from injury or disease that is 
otherwise shown to have been incurred or aggravated during service, 
which means that the disability or death can be service connected on 
some basis other than the veteran's use of tobacco products during 
service or that the disability became manifest or death occurred during 
service;
    (2) The disability or death resulted from injury or disease that 
appeared to the required degree of disability within any applicable 
presumptive period under Sec. Sec.  5.260, 5.261, 5.262, 5.263, 5.264, 
5.265, 5.267, or 5.268; or
    (3) Service connection is established for ischemic heart disease or 
other cardiovascular disease under Sec.  3.310(c) of this chapter as 
secondary to a disability not caused by the use of tobacco products 
during service.

(Authority: 38 U.S.C. 501(a), 1103, 1103 note)


Sec.  5.366  Disability due to impaired hearing.

    VA will consider impaired hearing to be a disability when any of 
the following three criteria is satisfied:
    (a) The auditory threshold in any of the frequencies of 500, 1000, 
2000, 3,000, or 4000 Hertz is 40 decibels or greater;
    (b) The auditory thresholds for at least three of the frequencies 
of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or
    (c) Speech recognition scores using the Maryland CNC Test are less 
than 94 percent.

(Authority: 38 U.S.C. 1110)


Sec.  5.367  Civil service preference ratings.

    For certifying civil service disability preference only, a service-
connected disability may be assigned a rating of less than 10 percent. 
Any directly or presumptively service-connected injury or disease that 
exhibits some extent of actual impairment may be held to exist at the 
level of less than 10 percent. For disabilities incurred in combat, 
however, no actual impairment is required.

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


Sec.  5.368  Basic eligibility determinations: home loan and education 
benefits.

    (a) Loans. (1) General. Eligibility of certain veterans (listed in 
paragraph (a)(2) of this section) for a loan under 38 U.S.C. chapter 37 
requires a determination that the veteran was discharged or released 
because of a service-connected disability, or that the official service 
department records show that he or she had, at the time of separation 
from service, a service-connected disability that in medical judgment 
would have warranted a discharge for disability. These determinations 
are subject to the presumption of soundness under Sec.  3.304(b) of 
this chapter. Determinations based on World War II, Korean conflict, 
and Vietnam era service are also subject to the presumption of 
aggravation under Sec.  3.306(b) of this chapter, and determinations 
based on service after January 31, 1955, and before August 5, 1964; or 
after May 7, 1975, are subject to the presumption of aggravation under 
Sec.  3.306 (a) and (c) of this chapter. This paragraph is also 
applicable, regardless of length of service, in determining eligibility 
to the maximum period of entitlement based on discharge or release for 
a service-connected disability. (See Sec.  5.39, ``Minimum active duty 
service requirement for VA benefits.'')
    (2) Veterans affected. The veterans affected by this paragraph are:
    (i) Veteran of World War II, the Korean conflict, or the Vietnam 
era who served for less than 90 days; or
    (ii) Veterans who served less than 181 days on active duty as 
defined in Sec. Sec.  36.4301 and 36.4501, and whose dates of service 
were:
    (A) After July 25, 1947, and before June 27, 1950;
    (B) After January 31, 1955, and before to August 5, 1964; or
    (C) After May 7, 1975.

(Authority: 38 U.S.C. 3702, 3707)

    (b) Veterans' educational assistance. (1) A determination is 
required as to whether a veteran was discharged or released from active 
duty service because of a service-connected disability, or whether the 
official service department records show that the veteran had at time 
of separation from service a service-connected disability which in 
medical judgment would have warranted discharge for disability, 
whenever any of the following circumstances exist:
    (i) The veteran applies for benefits under 38 U.S.C. chapter 32, 
the minimum active duty service requirements of 38 U.S.C. 5303A apply 
to him or her, and the veteran would be eligible for such benefits only 
if:
    (A) He or she was discharged or released from active duty for a 
disability incurred or aggravated in the line of duty; or
    (B) He or she has a disability that VA has determined to be 
compensable under 38 U.S.C. chapter 11; or
    (ii) The veteran applies for benefits under 38 U.S.C. chapter 30 
and:
    (A) The evidence of record does not clearly show either that the 
veteran was discharged or released from active duty for disability or 
that the veteran's discharge or release from active duty was unrelated 
to disability, and
    (B) The veteran is eligible for basic educational assistance except 
for the minimum length of active duty service requirements of Sec.  
21.7042(a) or Sec.  21.7044(a) of this chapter.

[[Page 62032]]

    (2) A determination is required as to whether a veteran was 
discharged or released from service in the Selected Reserve for a 
service-connected disability or for a medical condition which 
preexisted the veteran's having become a member of the Selected Reserve 
and which VA determines is not service connected when the veteran 
applies for benefits under 38 U.S.C. chapter 30 and:
    (i) The veteran would be eligible for basic educational assistance 
under that chapter only if he or she was discharged from the Selected 
Reserve for a service-connected disability or for a medical condition 
which preexisted the veteran's having become a member of the Selected 
Reserve and which VA finds is not service connected, or
    (ii) The veteran is entitled to basic educational assistance and 
would be entitled to receive it at the rates stated in Sec.  21.7136(a) 
or Sec.  21.7137(a) of this chapter only if he or she was discharged 
from the Selected Reserve for a service-connected disability or for a 
medical condition which preexisted the veteran's having become a member 
of the Selected Reserve and which VA finds is not service connected.
    (3) A determination is required as to whether a reservist has been 
unable to pursue a program of education due to a disability which has 
been incurred in or aggravated by service in the Selected Reserve when:
    (i) The reservist is otherwise entitled to educational assistance 
under 10 U.S.C. chapter 1606, and
    (ii) He or she applies for an extension of his or her eligibility 
period.
    (4) The determinations required by paragraphs (b)(1) through (b)(3) 
of this section are subject to the presumptions of soundness under 
Sec.  3.304(b) of this chapter and aggravation under Sec.  3.306(a) and 
(c) of this chapter, based on service rendered after May 7, 1975.

(Authority: 38 U.S.C. 3011(a)(1)(A)(ii), 3012(b)(1), 3202(1)(A), 10 
U.S.C. 16133(b))


Sec.  5.369  [Reserved]

 [FR Doc. E8-23825 Filed 10-16-08; 8:45 am]
BILLING CODE 8320-01-P