Servicemembers' Group Life Insurance Traumatic Injury Protection Program Amendments
| Published date | 19 August 2020 |
| Citation | 85 FR 50973 |
| Record Number | 2020-15981 |
| Section | Proposed rules |
| Court | Veterans Affairs Department |
Federal Register, Volume 85 Issue 161 (Wednesday, August 19, 2020)
[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Proposed Rules]
[Pages 50973-50989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15981]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 9
RIN 2900-AQ53
Servicemembers' Group Life Insurance Traumatic Injury Protection
Program Amendments
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations that govern the Servicemembers' Group Life Insurance (SGLI)
Traumatic Injury Protection (TSGLI) program, to clarify the eligibility
criteria, add definitions, and explain the application and appeals
processes, including the submission of supporting evidence and the
interaction between the administrative appeals process and a Federal
lawsuit on a claim. VA proposes to recodify the definitions in the
current regulation that are pertinent to the schedule of losses, revise
existing definitions, and add new definitions. VA would add a new
regulation to codify the text at the beginning of the schedule of
losses, recodify that schedule, and amend the criteria for certain
losses in the schedule. This rulemaking also responds to a petition for
rulemaking.
DATES: Comments must be received on or before October 19, 2020.
ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to: Director, Office of
Regulation Policy and Management (00REG), Department of Veterans
Affairs, 810 Vermont Ave. NW, Room 1064, Washington, DC 20420; or by
fax to (202) 273-9026. (This is not a toll-free telephone number.)
Comments should indicate that they are submitted in response to ``RIN
2900-AQ53 Servicemembers' Group Life Insurance Traumatic Injury
Protection Program Amendments.'' Copies of comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1064, between the hours of 8:00 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 telephone 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: Paul Weaver, Department of Veterans
Affairs Insurance Center (310/290B), 5000 Wissahickon Avenue,
Philadelphia, PA 19144, (215) 842-2000, ext. 4263. (This is not a toll-
free number.)
SUPPLEMENTARY INFORMATION: TSGLI provides up to $100,000 of traumatic
injury coverage to all servicemembers enrolled in SGLI. TSGLI provides
a financial benefit to seriously injured SGLI insureds to assist them
with expenses incurred during long periods of recovery and
rehabilitation. Since the program began issuing benefits on December
22, 2005, through June 30, 2019, over $1 billion has been paid to
almost 18,500 injured servicemembers. TSGLI is modeled after commercial
Accidental Death and Dismemberment
[[Page 50974]]
(AD&D) insurance coverage, specifically, the ``dismemberment'' portion
of the coverage, although it deviates in some respects from the
commercial AD&D model to account for the unique needs of military
personnel. 70 FR 75,940 (Dec. 22, 2005). In developing these proposed
amendments, VA considered industry practice and AD&D case law, the
goals and purpose of the TSGLI authorizing statute, as well as analysis
from a TSGLI Year-Ten Review and consultation with medical experts.
I. Year-Ten Review
After ten years of program implementation, VA initiated a
comprehensive review of TSGLI regulations to assess proposals for
improvements, clarify eligibility standards, identify opportunities for
administrative and operational enhancements, and ensure consistency
with congressional intent. VA reviewed approximately 1,850 TSGLI claims
that had been adjudicated by the uniformed services and consulted with
medical experts at 18 military, VA, and private medical facilities,
including George Washington University Medical Center, Washington, DC;
Navy Medical Center, San Diego, California; San Antonio Military
Medical Center, San Antonio, Texas; University of Pennsylvania
Hospital, Philadelphia, Pennsylvania; VA Amputation System of Care, VA
Medical Center, Richmond, Virginia; VA Medical Center, Bay Pines,
Florida; VA Polytrauma Center, Tampa, Florida; Walter Reed National
Military Medical Center, Bethesda, Maryland; and Moss Rehabilitation
Research Institute, Elkins Park, Pennsylvania (``experts'').
Areas addressed by the review include loss standards, application
and appeals processes, forms, program exclusions, and definitions. A
copy of the review can be found at https://www.benefits.va.gov/INSURANCE/docs/TSGLI_YTR.pdf. This comprehensive program review served
as the basis for many aspects of this proposed rulemaking.
While VA was conducting the Year-Ten Review, a petition for
rulemaking was submitted to the Secretary of Veterans Affairs on March
16, 2015. The petition is addressed in this notice of proposed
rulemaking, which serves as the Secretary's response to the petition.
II. Proposed Amendments to Sec. 9.20
A. New Sec. 9.20(b)--Qualifying Traumatic Events
VA proposes to restructure current Sec. 9.20(b)(1) and to add new
qualifying traumatic events.
New paragraph (b)(1)(A)-(C) would incorporate the material in
current Sec. 9.20(b)(1) that defines a traumatic event to include
damage caused by ``application of external force, violence, chemical,
biological, or radiological weapons'' and ``accidental ingestion of a
contaminated substance.'' As explained below, VA would add a definition
of ``external force'' in new Sec. 9.20(e)(6)(iv) and ``ingestion'' in
new Sec. 9.20(e)(6)(v).
New paragraph (b)(1)(D) would add exposure to low environmental
temperatures, excessive heat, and documented non-penetrating blast
waves as traumatic events based upon evidence showing increased
occurrence of traumatic injuries resulting from such exposures. The
incidence of heat illnesses in the uniformed services had risen between
2014 and 2018 creating a ``significant and persistent threat to both
the health of U.S. military members and the effectiveness of military
operations.'' Armed Forces Health Surveillance Branch, Update: Heat
Illness, Active Component, U.S. Armed Forces, 2018, 26 Med.
Surveillance Monthly Rep. 15, 19 (2019). Injury from cold weather
increased among military troops by 19.6% in 2017-2018 compared to 2016-
2017. Armed Forces Health Surveillance Branch, Update: Cold Weather
Injuries, Active and Reserve Components, U.S. Armed Forces, July 2013-
June 2018, 25 Med. Surveillance Monthly Rep. 10 (2018). Additionally,
``cold injuries have continued to affect hundreds of service members
each year because of exposure to cold and wet environments'' and
``[s]uch environmental conditions pose the threat of hypothermia,
frostbite, and nonfreezing cold injury such as immersion injury.'' Id.
Whether in training or in forward operating locations, the risk of
exposure to extreme temperatures can result in severe traumatic
injuries, including amputations or coma. Finally, many servicemembers
develop traumatic brain injury (TBI) from the effects of blast waves.
Ralph G. DePalma, M.D., et al., Blast Injuries, 352 New Eng. J. of Med.
1335-1342 (2005); David S. Plurad, Blast Injury, 176 Mil. Med. 276, 281
(2011).
VA also proposes to state in new paragraph (b)(1)(E) that an insect
bite or sting or animal bite would qualify as a traumatic event. We are
adding such bites because they involve application of an external force
to the body that transmits an allergen or poison into the body. See
Hargett v. Jefferson Standard Life Ins. Co., 128 S.E.2d 26, 31 (N.C.
1962); Omberg v. U.S. Mut. Ass'n, 40 S.W. 909, 910 (Ky. Ct. App. 1897).
B. New Sec. 9.20(c)--Qualifying Traumatic Injury
VA proposes to recodify current Sec. 9.20(c)(3) as new Sec.
9.20(c)(4) and to add new paragraph (c)(3), which would state that
anaphylaxis caused by a bug bite or sting or animal bite is a traumatic
injury. VA is proposing to add anaphylaxis because this harm occurs
immediately after such a sting or bite. This would be consistent with
case law finding that an allergic reaction is covered under AD&D
policies because it is not a disease. See Escoe v. Metro. Life Ins.
Co., 35 N.Y.S.2d 833, 834 (N.Y. Sup. Ct. 1942) (death from allergy to
sulfapyridine given to treat pneumonia was accident, not disease);
Berkowitz v. N.Y. Life Ins. Co., 10 N.Y.S.2d 106, 111 (N.Y. App. Div.
1939) (``mere predisposing tendency cannot be held as a matter of law
to be an infirmity or disease''); Crisler v. Unum Ins. Co. of Am., 233
SW3d 658, 663 (Ark. 2006) (allergic reaction to injection of antibiotic
was not disease).
C. New Sec. 9.20(d)--Eligibility Requirements
1. New Sec. 9.20(d)(2)--Causation
Section 1980A(c)(1) of title 38, United States Code, states that a
qualifying loss must ``result[ ] directly from a traumatic injury . . .
and from no other cause.'' VA codified this requirement in current 38
CFR 9.20(d)(2). In addition, current 38 CFR 9.20(e)(4) states that a
loss is not covered if it results from a physical or mental illness or
disease or mental disorder, ``whether or not caused by a traumatic
injury,'' other than the exceptions noted in paragraph (e)(4)(i).
VA proposes to amend current Sec. 9.20(d)(2) to restate the
statutory requirement that a scheduled loss must ``result directly from
a traumatic injury . . . and from no other cause.'' Some courts have
interpreted this phrase in AD&D and Employee Retirement Income Security
Act case law to mean that a loss is not covered if a preexisting
condition or disease ``substantially contributed'' to the loss. See,
e.g., Dixon v. Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th Cir.
2004); Ganapolsky v. Boston Mut. Life Ins. Co., 138 F.3d 446, 448 (1st
Cir. 1998); House v. Life Ins. Co. of N. Am., 399 F. Supp. 2d 1254,
1264-65 (N.D. Ala. 2005); Danz v. Life Ins. Co. of N. Am., 215 F. Supp.
2d 645, 652 (D. Md. 2002) (citing Quesinberry v. Life Ins. Co. of N.
Am., 987 F.2d 1017, 1028 (4th Cir. 1993) (en banc)). Based upon this
case law, we propose to add paragraph (d)(2)(A), which would explain
that, under this standard, a scheduled loss does not result directly
from a traumatic injury and no other
[[Page 50975]]
cause if a pre-existing disease, illness, or condition substantially
contributed to the loss. Thus, for example, if a member suffers a
qualifying loss such as leg amputation and the member also suffers from
a pre-existing condition such as diabetes, the member would not be
eligible for TSGLI if the pre-existing diabetes substantially
contributed to the amputation of the leg.
We also propose to state in Sec. 9.20(d)(2)(A) that a scheduled
loss does not result directly from a traumatic injury and no other
cause if a post-service injury substantially contributes to the loss.
For example, if a member suffers a leg injury in service and a post-
service injury to the same leg, and the member's leg is then amputated,
the member would not be eligible for TSGLI if the post-service leg
injury substantially contributed to the amputation.
VA also proposes to add new paragraph (d)(2)(B) to clarify that a
scheduled loss is a direct result of a traumatic injury if the loss is
caused by a diagnostic procedure or a medical or surgical procedure
that was used to treat the traumatic injury. Ins. Co. of N. Am. v.
Thompson, 381 F.2d 677, 681 (9th Cir. 1967); 10 Couch on Insurance 3d
Sec. 141:78, at 141-113 (1998). For example, if a member is injured in
a motor vehicle accident, undergoes surgery to treat a back injury
suffered in the accident, and is paralyzed because of the surgery, the
scheduled loss would be covered by TSGLI. We would make a corresponding
change in new Sec. 9.20(e)(3)(i)(C) to explain that TSGLI would be
payable if a scheduled loss is caused by a diagnostic or medical or
surgical procedure that was necessary to treat a traumatic injury.
2. New Sec. 9.20(d)(4)--Two-Year Loss Period
Current Sec. 9.20(d)(4) requires a member to suffer a scheduled
loss within two years of the traumatic injury. VA proposes to update
the citation to the schedule of losses in Sec. 9.20(d)(4) by deleting
``paragraph (e)(7) of this section'' and inserting instead ``Sec.
9.21(c).''
D. New Sec. 9.20(e)--Scheduled Loss
1. New Sec. 9.20(e)(1)--Definition of Scheduled Loss
VA proposes to update the reference to the schedule in current
Sec. 9.20(e)(1) by deleting ``paragraph (e)(7) of this section'' and
inserting instead ``Sec. 9.21(c).'' VA also proposes to add ``from no
other cause'' to the definition of scheduled loss to correspond to 38
U.S.C. 1980A(c)(1).
2. New Sec. 9.20(e)(3)--Exclusions
a. New Sec. 9.20(e)(3)(i)(C)--Medical Procedures & Treatment Exclusion
Consistent with new paragraph (d)(2)(B), VA proposes to add the
phrase ``unless the diagnostic procedure or medical or surgical
treatment is necessary to treat a traumatic injury'' to the end of the
paragraph to clarify that a scheduled loss caused by a diagnostic
procedure or medical or surgical treatment that is necessary to a
traumatic injury would be eligible for a TSGLI payment. This is
consistent with AD&D case law. Thompson, 381 F.2d at 681.
b. New Sec. 9.20(e)(3)(ii)--Felony Exclusion
Current Sec. 9.20(e)(3)(ii) specifies that TSGLI will not be paid
if a member suffers a loss while committing or attempting to commit a
felony. VA proposes to amend Sec. 9.20(e)(3)(ii) to clarify that this
exclusion applies if a member suffers a loss while committing an act
that violated a penal law classifying it as a felony. This approach is
consistent with AD&D industry practice. See Williams v. Life Ins. Co.
of N. Am., 117 F. Supp. 3d 1206, 1216 (W.D. Wash. 2015) (citing
Allstate Ins. Co. v. Raynor, 969 P.2d 510, 516 (Wash. Ct. App. 1999)).
3. New Sec. 9.20(e)(6)--Definitions
We propose to amend current Sec. 9.20(e)(6) by recodifying
paragraph (i)-(vi) and (xiii)-(xxix), which are relevant to the
schedule of losses, in new Sec. 9.21, adding definitions of the
following terms that are relevant to Sec. 9.20, and alphabetizing all
the definitions in new paragraph (e)(6). For example, we propose to
incorporate the definitions of ``quadriplegia,'' ``paraplegia,''
``hemiplegia,'' ``uniplegia,'' and ``complete and irreversible
paralysis'' in current Sec. 9.20(e)(6)(i)-(v) and the definition of
``permanent'' in new Sec. 9.21(a)(10) into the criteria for
quadriplegia, paraplegia, hemiplegia, and uniplegia in new Sec.
9.21(c)(4)-(7). In another example, we propose to incorporate the
definitions in current Sec. 9.20(e)(6)(xxi)-(xxix) and the definition
of ``permanent'' in new Sec. 9.21(a)(10) into the criteria for
genitourinary losses in new Sec. 9.21(c)(19).
a. External Force
VA would define ``external force'' in new Sec. 9.20(e)(6)(iv) to
mean a ``sudden or violent impact from a source outside of the body
that causes an unexpected impact and is independent of routine body
motions such as twisting, lifting, bending, pushing, or pulling.'' This
proposed definition is consistent with AD&D practice that excludes such
routine body activities as traumatic events. See e.g., Mutual Life Ins.
Co. v. Hassing, 134 F.2d 714, 716 (10th Cir. 1943) (AD&D policy
requiring bodily injury effected solely through external, violent,
accidental means). For example, a sprained ankle suffered while running
would not be considered a traumatic event because the damage was not
caused by an external force but rather by stretching or tearing
ligaments. https://www.mayoclinic.org/diseases-conditions/sprained-ankle/symptoms-causes/syc-20353225. However, a fall that causes a
herniated disc would constitute a traumatic event because the damage to
the body was caused by hitting the ground, i.e., an external force.
b. Ingestion
VA proposes to define ``ingestion'' in new Sec. 9.20(e)(6)(v) to
mean ``to take into the gastrointestinal tract by means of the mouth.''
This definition is consistent with the common meaning of the term. See
United States v. Ten Cartons, 888 F. Supp. 381, 393 (E.D.N.Y. 1995),
aff'd, 10 F.3d 285 (2d Cir. 1995).
c. Medically Incapacitated
VA proposes to define the term ``medically incapacitated'' in new
paragraph (e)(6)(vii) to mean an ``individual who has been determined
by a medical professional to be physically or mentally impaired by
physical disability, mental illness, mental deficiency, advanced age,
chronic use of drugs or alcohol, or other causes that prevent
sufficient understanding or capacity to manage his or her own affairs
competently.''
E. New Sec. 9.20(f)--TSGLI Application Process
VA proposes to recodify current Sec. 9.20(f), which contains the
schedule of losses, in new 38 CFR 9.21(c), recodify current Sec.
9.20(h), which explains the TSGLI application process, as new Sec.
9.20(f), and amend new paragraph (f).
VA proposes to clarify in new Sec. 9.20(f)(1)(i) that a medical
professional must complete and sign Part B of the Application for TSGLI
Benefits Form in addition to the requirement that a member complete and
sign Part A of the Application for TSGLI Benefits Form, i.e., both Part
A and Part B must be completed to initiate a claim for TSGLI benefits.
VA would also explain that a member must submit evidence substantiating
that the member suffered a traumatic injury and resulting loss. This
clarification is intended to indicate
[[Page 50976]]
that Part A alone is insufficient documentation to support eligibility
for TSGLI benefits.
VA would also add a requirement to new Sec. 9.20(f)(1)(ii) that,
if a medical professional certifies in Part B of the Application for
TSGLI Benefits Form that a member is medically incapacitated, the Form
must be signed by a guardian; an agent or attorney acting under a valid
Power of Attorney; military trustee as available, in that order. We
propose to change ``legally incapacitated'' to ``medically
incapacitated'' to make the regulation consistent with 38 U.S.C.
1980A(k)(1) and (2)(B), which provides for appointment of a fiduciary
or trustee of a servicemember who is ``medically incapacitated.''
VA would also recodify Sec. 9.20(h)(1)(iii) as Sec.
9.20(f)(1)(iii).
Finally, VA would recodify Sec. 9.20(h)(2) as Sec. 9.20(f)(2) and
amend the paragraph by deleting the current citations to the schedule
of losses and inserting citations to new Sec. 9.21(c).
F. New Sec. 9.20(g)--Uniformed Service Decision on TSGLI Claim
VA proposes to add a regulation explaining both who decides a TSGLI
claim and the decision-making process, which would be codified as new
Sec. 9.20(g). Current Sec. 9.20(g), which states that the uniformed
service to which a member belongs certifies whether the member was
insured under SGLI at the time of the traumatic injury and whether the
member sustained a qualifying loss, would be recodified as new Sec.
9.20(g)(1) with non-substantive changes.
Paragraph (g)(2) would state that the uniformed service office may
request additional evidence from the member if the record does not
contain sufficient evidence to decide the claim.
Paragraph (g)(3) would require the uniformed service office to
consider all medical and lay evidence of record, including all evidence
provided by the member, and determine its probative value. The
probative value of medical evidence may depend upon whether a medical
professional examined the servicemember; treated the member on an
ongoing basis; provides relevant and objective evidence to support an
opinion; or provides an opinion that is consistent with other evidence
of record. The probative value of lay evidence may depend upon
consistency with a member's service records and other lay and medical
evidence of record.
Paragraph (g)(3) would also adopt the benefit of the doubt
evidentiary standard for adjudication of TSGLI claims. The Supreme
Court has long recognized that the character of the veterans' benefits
statutes is strongly and uniquely pro-claimant. See, e.g., Fishgold v.
Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) (liberally
construing Selective Training and Service Act of 1940, 54 Stat. 885, 50
U.S.C. App. Sec. 301, ``for the benefit of those who left private life
to serve their country in its hour of great need''); Coffy v. Republic
Steel Corp., 447 U.S. 191, 196 (1980); Brown v. Gardner, 513 U.S. 115,
118 (1994). Congress itself has recognized and preserved the unique
character and structure of the veterans' benefits system. When enacting
the Veterans' Judicial Review Act, Public Law 100-687, 102 Stat. 4105
(1988), Congress stated its expectation that VA would ``resolve all
issues by giving the claimant the benefit of any reasonable doubt.''
H.R. Rep. No. 100-963, at 13 (1988), reprinted in 1988 U.S.C.C.A.N.
5782, 5794-95.
Although TSGLI entitlement is adjudicated by the uniformed services
not VA, we believe that the benefit of the doubt standard should
similarly be applied to adjudication of entitlement to TSGLI, which
provides benefits to members who were seriously injured while serving
the United States and which VA administers on behalf of the uniformed
services. 38 U.S.C. 1980A. In addition, the uniformed services apply
the benefit of the doubt in determining a member's unfitness for
service because of physical disability and when evaluating members for
compensable conditions. DoD Instruction 1332.18, App'x 2 to Encl. 3,
para. 6.a.(2) and App'x 3 to Encl. 3, para. 7.i. (2014); see Army Reg.
635-40, para. 5-6.a. (2017) (benefit of doubt will be resolved in favor
of member's fitness for duty under presumption that member desires to
be found fit for duty).
The benefit of the doubt would apply only when the positive and
negative evidence relating to the member's TSGLI claim are
approximately balanced. E.g., Ortiz v. Principi, 274 F.3d 1361, 1365-66
(Fed. Cir. 2001). If the preponderant evidence weighs against the
member's TSGLI claim, the evidence is not approximately balanced, and
the benefit of the doubt rule would not resolve the issue in favor of
the member because there is no doubt to be resolved. Id.
New Sec. 9.20(g)(4) would contain the first sentence of current
paragraph (i)(1), which explains that notice of a decision on a TSGLI
claim must include notice of appellate rights. VA would also state in
new Sec. 9.20(g)(4) that an adverse decision must include a statement
of the reasons for the decision and a summary of the evidence
considered. See O'Neill v. United States, No. 11-2584, 2013 WL 6579039
(D. Col. Dec. 13, 2013) (citing Dickson v. Sec'y of Defense, 68 F.3d
1396 (D.C. Cir. 1995)).
G. New Sec. 9.20(h)--Appeal of TSGLI Decision
VA proposes to recodify the rest of current Sec. 9.20(i), which
addresses appeals of TSGLI decisions, as new Sec. 9.20(h) and would
amend the regulation as explained below.
New Sec. 9.20(h)(1) would state that each uniformed service has
established its own, three-tiered TSGLI appellate process, i.e.,
reconsideration, followed by a second-level appeal and then a third-
level appeal. The paragraph would also make clear that persons
appealing an eligibility determination to the uniformed services must
utilize the appeal process of the uniformed service that issued the
original decision. See, e.g., SECNAV Instruction 1770.4A, Encl. (1),
para. 8. (2019) (following reconsideration by TSGLI branch-of-service
adjudicator and review by TSGLI Appeals Board, member may appeal to
Board for Correction Naval Records). The names of the reviewing offices
may differ among the uniformed services, and the proposed rules thus
would use the generic terms ``second-level'' and ``third-level'' to
describe the common appellate structure. The notice provided by the
uniformed services under proposed Sec. 9.20(g)(4) will identify the
relevant second-level or third-level office of the uniformed service as
appropriate. VA would also include a reference to paragraph (f)(1)(ii)
and (iii) in paragraph (h)(1) for the current list of persons other
than the member who may submit an appeal.
New paragraph (h)(1)(A) would explain reconsideration, which is the
first appellate tier. VA proposes to state in new paragraph
(h)(1)(A)(i) that a member, or other person eligible to submit a claim
under paragraph (f)(1)(ii) or (iii), initiates reconsideration of an
eligibility determination, such as whether the loss occurred within 730
days of the traumatic injury, whether the member was insured under
Servicemembers' Group Life Insurance when the traumatic injury was
sustained, or whether the injury was self-inflicted or whether a loss
of hearing was total and permanent, by filing a written notice of
appeal within one year of the eligibility decision with the office of
the uniformed service identified in the decision. This amendment would
also require that the request for reconsideration identify the issues
for which reconsideration is sought. As a result, VA would delete
[[Page 50977]]
current paragraph (i)(2), which states that appeal of whether a member
was insured under SGLI must be appealed to the Office of
Servicemembers' Group Life Insurance. Section 1980A(f) of title 38,
United States Code, requires the Department of Defense or Secretary
concerned to ``certify'' whether a member was ``insured under [SGLI]''
at the time of injury and ``sustained a qualifying loss.'' We believe
that it would be consistent with this statute for the uniformed service
to decide appeals of all issues including SGLI coverage.
Proposed paragraph (h)(1)(A)(i) would also state that an appeal of
an eligibility determination, such as whether a loss occurred within
``730 days,'' rather than ``365 days'' (as stated in current Sec.
9.20(i)(1)), must be in writing. This change in the number of days
would comport with 38 CFR 9.20(d)(4), which states that a scheduled
loss must occur within two years of the traumatic injury and corrects
an oversight in a 2007 TSGLI rulemaking. 72 FR 10362 (Mar. 8, 2007).
New paragraph (h)(1)(A)(ii) would state that the uniformed service
TSGLI office will reconsider the claim, including evidence submitted
with the notice of appeal by or on behalf of the member that was not
previously part of the record before the uniformed service, and decide
the claim.
New paragraph (h)(1)(B) would explain the second tier of appellate
review. VA proposes to state in new paragraph (h)(1)(B)(i) that an
appeal of a reconsideration decision is initiated by filing, with the
second-level appeal office of the uniformed service within one year of
the reconsideration decision, a written notice of appeal that
identifies the issues being appealed. New paragraph (h)(1)(B)(ii) would
state that the second-level appeal office will review the claim,
including evidence submitted with the notice of appeal by or on behalf
of the member that was not previously part of the record before the
uniformed service, and decide the claim.
New paragraph (h)(1)(C) would explain the third tier of appellate
review. VA proposes to state in new paragraph (h)(1)(C)(i) that an
appeal of a decision by the second-level appeal office is initiated by
filing, with the third-level appeal office of the uniformed service
within one year of the date of the decision by the second-level appeal
office of the uniformed service, a written notice of appeal that
identifies the issues being appealed. New paragraph (h)(1)(C)(ii) would
state that the third-level appeal office will review the claim,
including evidence submitted with the notice of appeal by or on behalf
of the member that was not previously part of the record before the
uniformed service, and decide the claim.
New paragraph (h)(2) would state that, if a timely notice of appeal
seeking reconsideration of the initial decision by the uniformed
service or seeking review of the decision by the second-level uniformed
service appeal office is not filed, the initial decision by the
uniformed service or the decision by the second-level uniformed service
appeal office, respectively, shall become final, and the claim will not
thereafter be readjudicated or allowed except as explained in new
paragraph (h)(3).
VA proposes in new paragraph (h)(3)(i) that, if new and material
evidence is submitted with respect to a claim that has been finally
disallowed, the uniformed service office will consider the evidence,
determine its probative value, and readjudicate the claim. VA would
define new and material evidence in paragraph (h)(3)(i) as ``evidence
that was not previously part of the record before the uniformed
service, is not cumulative or redundant of evidence of record at the
time of the prior decision and is likely to have a substantial effect
on the outcome.'' See 32 CFR 723.9 (defining new and material evidence
for purposes of reconsideration of a final decision by Board for
Correction of Naval Records); Jackson v. Mabus, 808 F.3d 933, 936 (D.C.
Cir. 2015).
VA proposes to add paragraph (h)(3)(ii), which would state that a
finding that the evidence submitted is not new and material may be
appealed using the process in paragraph (h)(1).
VA would recodify current paragraph (i)(3) as new Sec. 9.20(h)(4).
New Sec. 9.20(h)(4) would restate the sentence in current Sec.
9.20(i)(3). VA also proposes to explain that a member who files suit in
U.S. district court after an adverse initial decision on a TSGLI claim
by a uniformed service would be precluded from filing an appeal with
the uniformed service identified in the decision if the lawsuit is
pending before a U.S. district court, U.S. court of appeals, or U.S.
Supreme Court or the time for appeal or filing a petition for a writ of
certiorari has not expired. Paragraph (h)(4) would also state that, if
a member appeals a decision to a U.S. district court after filing an
appeal with a uniformed service, the appeal with the uniformed service
would be stayed if the lawsuit is pending before a U.S. district court,
U.S. court of appeals, or U.S. Supreme Court or the time for appeal or
a petition for a writ of certiorari has not expired. This amendment is
intended to streamline the TSGLI appellate process and prevent
multiple, concurrent reviews of TSGLI appeals.
H. New Sec. 9.20(i)--Payment of TSGLI
VA would recodify current Sec. 9.20(j) as new Sec. 9.20(i). VA
would delete the word ``title'' in the text preceding current Sec.
9.20(j)(1) and would amend new paragraph (i)(1) to correspond to
proposed Sec. 9.20(f)(1)(ii). New paragraph (i)(1) would state that a
member's guardian, agent or attorney acting under a valid Power of
Attorney, or trustee will be paid the TSGLI benefit if a medical
professional has certified that the member is medically incapacitated
in Part B of the Application for TSGLI Benefits Form. As explained
above, we have changed ``legally incapacitated'' to ``medically
incapacitated'' to make the regulation consistent with 38 U.S.C.
1980A(k)(1) and (2)(B).
I. New Sec. 9.20(j)--Administration of TSGLI Program
VA would recodify current Sec. 9.20(k) as new Sec. 9.20(j).
III. New Sec. 9.21--Schedule of Losses
VA proposes to recodify current Sec. Sec. 9.21 and 9.22 as new
Sec. Sec. 9.22 and 9.23. VA also proposes add new Sec. 9.21, which
would: (1) Recodify certain definitions that are pertinent to the
schedule of losses and are currently in Sec. 9.20(e)(6) in new Sec.
9.21(a) and amend certain definitions; (2) move criteria for certain
losses from the definitions to the schedule of losses; (3) recodify the
text preceding the current schedule as new Sec. 9.21(b); (4) recodify
the schedule of losses in current Sec. 9.20(f) as new Sec. 9.21(c);
and (5) amend the criteria for certain losses.
A. New Sec. 9.21(a)--Definitions of Terms
VA proposes to recodify definitions in current Sec. 9.20(e)(6)
that are relevant to the schedule in new Sec. 9.21(a), amend certain
existing definitions pertinent to the schedule, and add new definitions
for terms not currently defined. In addition, current 38 CFR
9.20(e)(6)(i)-(iv) and (xiv)-(xxix) are in fact criteria for losses in
the schedule rather than definitions. VA would therefore recodify these
criteria in the schedule itself in new Sec. 9.21(c) rather than define
them in new Sec. 9.21(a). This would also make it easier for
adjudicators to decide claims because they could find all relevant
criteria in the schedule.
1. Avulsion
In new Sec. 9.21(a)(5), VA would define the term ``avulsion'' for
purposes of new Sec. 9.21(c)(16) pertaining to facial reconstruction
to mean a forcible
[[Page 50978]]
detachment or tearing of bone and/or tissue due to a penetrating
injury.
2. Consecutive
In new Sec. 9.21(a)(6), VA would define ``consecutive'' to mean
``to follow in uninterrupted succession.'' This definition is
consistent with the well-accepted meaning of the term. Black's Law
Dictionary 304 (6th ed. 1990) (defining ``consecutive'' as
``[s]uccessive; succeeding one another in regular order; to follow in
uninterrupted succession''); Hill v. Tenn. Rural Health Improvement
Ass'n, 882 SW2d 801, 803 (Tenn. Ct. App. 1994).
3. Discontinuity Defect
In new Sec. 9.21(a)(7), VA proposes to define ``discontinuity
defect'' pertaining to facial reconstruction under new Sec.
9.21(c)(16) to mean the absence of bone and/or tissue from its normal
bodily location, which interrupts the physical consistency of the face
and impacts at least one of the following functions: Mastication,
swallowing, vision, speech, smell, or taste. The requirement that a
discontinuity defect must impact mastication, swallowing, vision,
speech, smell, or taste is intended to provide TSGLI benefits to
members who cannot perform key facial functions without replacement of
the bone or tissue from another part of the body or manufactured bone
or tissue.
4. Hospitalization
VA proposes to recodify the definition of ``hospitalization'' in
current Sec. 9.20(e)(6)(xiii) at new Sec. 9.21(a)(8) and to amend the
definition to mean admission to a ``hospital'' as defined in 42 U.S.C.
1395x(e), which includes both inpatient critical care and inpatient
rehabilitation facilities, or a ``skilled nursing facility'' under 42
U.S.C. 1395i-3(a). Experts we consulted indicated that patients with
severe physical injuries covered by the schedule of losses are usually
treated in a hospital and then an inpatient rehabilitation or skilled
nursing care. We therefore intend for the periods of hospitalization
required by the schedule to continue if a member is receiving treatment
in a hospital or skilled nursing facility.
5. Inability To Carry Out Activities of Daily Living (ADLs)
Congress specified in 38 U.S.C. 1980A(b)(1)(H) that the inability
to carry out ADLs resulting from a TBI is a qualifying loss. In this
rulemaking, VA proposes to recodify current Sec. 9.20(e)(6)(vi) as new
Sec. 9.21(a)(9), amend the definition, and define terms used in the
amended definition.
The term ``inability to carry out the activities of daily living''
is defined in 38 U.S.C. 1980A(b)(2)(D) and current 38 CFR
9.20(e)(6)(vi) as the ``inability to independently perform at least''
two of six functions. VA proposes to delete ``independently'' from the
definition of ADL because it is subject to varying interpretations and
to clarify the term by stating in new Sec. 9.21(a)(9) that the
inability to carry out activities of daily living means that a medical
professional documents that a member is unable to perform two of the
six functions without assistance from another person, even if the
member uses accommodating equipment or adaptive behavior while
performing the functions. In order to further explain this definition,
VA proposes to define the terms ``accommodating equipment,'' ``adaptive
behavior,'' and ``assistance from another person'' in new Sec.
9.21(a)(1), (2), and (4), respectively.
VA would define ``accommodating equipment'' in new paragraph (a)(1)
to mean tools or supplies that enable a member to perform an ADL
without assistance from another person, including, but not limited to,
the following: wheelchair; walker or cane; reminder applications;
Velcro clothing or slip-on shoes; grabber or reach extender; raised
toilet seat; wash basin; shower chair; or shower or tub modifications
such as wheelchair access or no-step access, grab-bar, or handle.
VA proposes to define the term ``adaptive behavior'' in new
paragraph (a)(2) to mean compensating skills that allow a member to
perform an ADL without assistance from another person.
VA proposes to define the term ``assistance from another person''
in new paragraph (a)(4) to mean that a member, even while using
accommodating equipment or adaptive behavior, is nonetheless unable to
perform an activity of daily living unless a person physically supports
the member, is needed to be within arm's reach of the member to provide
assistance because the member's ability fluctuates, or provides oral
instructions to the member while the member attempts to perform the
ADL. A medical professional must document that a member requires
assistance from another person, even while the member is using
accommodating equipment and/or adaptive behavior, to perform two of the
six ADLs.
VA also proposes to define each of the six functions in new Sec.
9.21(a)(9)(A) through (F), as discussed below. These definitions are
based primarily on the Katz Index of Independence in Activities of
Daily Living, one of the most commonly used tools to assess basic ADLs.
Michelle E. Mlinac and Michelle C. Feng, Assessment of Activities of
Daily Living, Self-Care, and Independence, 31 Archives of Clinical
Neuropsychology 506-516 (2016).
a. Bathing
VA proposes to define the term ``bathing'' to mean washing, while
in a shower or bathtub or using a sponge bath, at least three of the
six following regions of the body in its entirety: Head and neck, back,
front torso, pelvis (including the buttocks), arms, or legs. For
example, if a member is unable to bathe three or more regions of the
body in a tub or shower without assistance from another person, even
while the member uses accommodating equipment or adaptive behavior
while bathing, the member would be unable to independently bathe.
However, if a member is able to bathe all but two parts of the body via
a sponge bath without such assistance, accommodating equipment or
adaptive behavior, the member would be considered able to bathe.
b. Continence
VA proposes to define the term ``continence'' to mean complete
control of bowel and bladder functions or management of a catheter or
colostomy bag, if present.
c. Dressing
VA proposes to define the term ``dressing'' to mean obtaining
clothes and shoes from a closet or drawers and putting on the clothes
and shoes, excluding tying shoelaces or use of belts, buttons, or
zippers. If a member can use accommodating equipment to obtain and put
on clothes and shoes and does not require assistance from another
person, the member would be able to perform this ADL. For example, if a
member can use slip-on shoes, clothing without buttons, or clothing
with elastic bands and does not require assistance from another person,
the member would be able to dress.
d. Eating
VA proposes to define the term ``eating'' to mean moving food from
a plate to the mouth or receiving nutrition via a feeding tube or
intravenously, and to exclude preparing or cutting food or obtaining
liquid nourishment through a straw or cup.
e. Toileting
VA proposes to define the term ``toileting'' to mean getting on and
off the toilet, taking clothes off before toileting and putting on
clothes after toileting, cleaning organs of excretion
[[Page 50979]]
after toileting, or using a bedpan or urinal.
f. Transferring
VA proposes to define the term ``transferring'' to mean moving in
and out of a bed or chair.
6. Permanent
VA proposes to define the term ``permanent'' in new Sec.
9.21(a)(10) to mean clinically stable and reasonably certain to
continue throughout the lifetime of the member.
7. Therapeutic Trip
VA proposes to define the term ``therapeutic trip'' in new Sec.
9.21(a)(11) as a hospital or facility-approved pass, signed by the
member's attending physician, to leave a hospital or facility, as
defined in 42 U.S.C. 1395x(e) or 1395i-3(a), respectively, accompanied
or unaccompanied by hospital or facility staff, as part of a member's
treatment plan and with which the member is able to return without
having to be readmitted to the hospital or facility. VA research
indicated that such trips are often part of the treatment plan for
individuals with traumatic brain injury, allowing the member and
treatment team to evaluate how the member handles outside stimuli in
his or her home or other environments. Because these therapeutic trips
are part of a member's treatment, we intend for any period of
hospitalization to include such trips.
B. New Sec. 9.21(b)--Requisite Period of Consecutive Days for
Scheduled Losses
VA proposes to recodify the text preceding the schedule of losses
in current Sec. 9.20(f) in new Sec. 9.21(b)(1)-(2) and to amend the
text.
New Sec. 9.21(b)(3) would explain the calculation of the required
periods of consecutive days of losses in new Sec. 9.21(c)(17), (18),
(20), and (21). New Sec. 9.21(b)(3)(A) would state that a period of
consecutive days of loss that is interrupted by a day or more during
which the criteria for the scheduled loss are not satisfied will not be
added together with a subsequent period of consecutive days of loss.
The counting of consecutive days starts over at the end of any period
in which the criteria for a loss are not satisfied. For example, if a
member has an ADL loss due to traumatic injury other than traumatic
brain injury (OTI) for 31 days, regains the ability to carry out ADLs
for two months, and then has a setback and is unable to carry out ADL
for another 30 days, these two periods of ADL loss would not be added
together to meet the 60-day payment milestone for ADL loss under
paragraph (c)(20). Rather, the member would be entitled to an
additional TSGLI payment under paragraph (c)(20) only if the second
period of ADL loss lasts for 60 consecutive days.
New Sec. 9.21(b)(3)(B) would state that, if a loss with a required
time period milestone begins but is not completed within two years of
the traumatic injury, the loss would nonetheless qualify for TSGLI if
the requisite time period of loss continues uninterrupted and concludes
after the end of the two-year period. For example, if a member suffered
a TBI on January 1, 2018 and was unable to perform ADLs due to the TBI
from December 15, 2019, through January 14, 2020, the member would be
eligible for TSGLI for this time period because the period of ADL loss
started within the two-year time limit and continued without
interruption after the two-year limit.
Section 9.21(b)(3)(B) would also state that, if a member suffers a
period of loss that continues uninterrupted immediately after the
period of loss that concluded after expiration of the two-year time
limit, the member would be entitled to TSGLI for this time period of
loss. For example, if the member who suffered ADL loss from December
15, 2019, through January 14, 2020, suffered another loss of ADLs that
continued uninterrupted from January 15, 2020, until February 14, 2020,
the member would be entitled to a TSGLI benefit for this period of loss
as well. However, if the second period of loss of ADLs did not commence
until January 20, 2020, TSGLI would not be payable for another period
of loss.
K. New Sec. 9.21(c)(1)-(21)--Schedule of Losses
VA proposes to recodify current Sec. 9.20(f)(1)-(21) as new Sec.
9.21(c)(1)-(21), incorporate definitions in current Sec. 9.20(e)(6)(i)
through (v) and (xiv) through (xxix) in the paragraphs in new Sec.
9.21(c) to which they pertain because they are in fact criteria rather
than definitions for these losses, and amend certain losses as
explained below.
1. New Sec. 9.21(c)(2)--Total and Permanent Loss of Hearing
VA proposes to amend the criteria for total and permanent loss of
hearing to explain that hearing acuity must be measured using pure tone
audiometry (air conduction testing) without use of an amplification
device. Pure tone audiometry is a very common and accepted method of
testing hearing in the medical field. See 38 CFR 4.85(a).
2. New Sec. 9.21(c)(7)--Uniplegia
VA proposes to amend the note in new Sec. 9.21(c)(7) because of
the new tiered payment structure for limb reconstruction under new
Sec. 9.21(c)(14) and (15). Under the current schedule in Sec.
9.20(f)(7), the TSGLI payment for uniplegia cannot be combined with the
payments for limb salvage or amputation of the same limb, because the
initial payment for uniplegia, i.e., $50,000, is the same for all three
losses and provides financial support for the member during the
rehabilitation period. 73 FR 71,926, 71,928 (Nov. 26, 2008). However,
as explained below, VA proposes to amend new Sec. 9.21(c)(14) and (15)
to provide payments ranging from $25,000 to $50,000 for limb
reconstruction, depending upon the number and type of surgeries
required. VA therefore proposes to revise the note in new Sec.
9.20(c)(7) to explain that: (1) Payment for uniplegia of the arm or leg
cannot be combined with loss for amputation of the same arm under new
paragraph (c)(9) or (10) or of the same leg under new paragraph (c)(11)
or (12); and (2) the higher TSGLI payment will be made for uniplegia
under new paragraph (c)(7) or limb reconstruction under new paragraph
(c)(14) or (15) for the same limb.
3. New Sec. 9.21(c)(8)--Burns
Under current Sec. 9.20(e)(6)(xvii) and (f)(8), a TSGLI benefit of
$100,000 is payable for ``2nd degree (partial thickness) or worse burns
covering at least 20 percent of the body, including the face and head,
or 20 percent of the face alone.'' However, the experts we consulted
indicated that, even though the American Burn Association standard for
referral to a Burn Center is partial thickness burns (or worse) of
greater than 10% total body surface area (TBSA), patients with full
thickness burns of at least 20% TBSA have more extensive rehabilitation
needs and risk of complications than patients with partial thickness
burns of at least 20% TBSA that do not require grafting. http://ameriburn.org/wp-content/uploads/2017/05/acs-resources-burn-chapter-14.pdf. Additionally, these specialists noted that the location of the
burn on the body has a major impact on rehabilitation. For example,
burns requiring skin grafts to joints and other body parts involved in
ADL significantly lengthen rehabilitation periods.
VA proposes that new Sec. 9.21(c)(8) pertaining to burns would
incorporate current medical terminology for severity determinations of
burns, specifically using ``partial thickness'' in place of
[[Page 50980]]
``2nd degree'' burns and ``full thickness'' in place of ``or worse.''
http://ameriburn.org/quality-care/mass-casualty/burn-care-and-prevention. Based upon the experts' advice, VA would also provide
tiered payments based upon the varying levels of rehabilitation
associated with various types and extent of burns. VA would state at
the beginning of new paragraph (c)(8) that the percentage of the body
burned may be measured using the Rule of Nines or any means of
measurement generally accepted within the medical profession. Also,
under new paragraph (c)(8), a member with partial thickness burns
covering 20 percent of the face or body, without the need for skin
grafting, would be entitled to $50,000. A member suffering partial
thickness burns or worse located on the face, hands, feet, genitalia,
perineum, ankles, knees, hips, wrists, elbows or shoulders that require
skin grafting or full thickness burns covering 20 percent of the face
or body would be entitled to $100,000.
VA also proposes to add a note at the end of new paragraph (c)(8)
explaining that road rash is an abrasion and not a burn and therefore
will be evaluated for loss purposes under new Sec. 9.21(c)(20) or
(21). https://www.merriam-webster.com/dictionary/road%20rash.
4. New Sec. 9.21(c)(9)--Amputation of a Hand at or Above the Wrist
VA proposes to revise the note at the end of new Sec. 9.21(c)(9)
to state that: (1) Payment for amputation of the hand cannot be
combined with payment for loss due to uniplegia under new paragraph
(c)(7) or amputation at or above the metacarpophalangeal joints under
new paragraph (c)(10) for the same hand; and (2) the higher payment
will be made for either amputation of the hand under new paragraph
(c)(9) or limb reconstruction of the arm under new paragraph (c)(14).
As explained above, these proposed amendments are necessitated by the
new tiered limb reconstruction standard.
5. New Sec. 9.21(c)(10)--Amputation at or Above the
Metacarpophalangeal Joint(s) of Either the Thumb or the Other 4 Fingers
of 1 Hand
VA proposes to revise the note at the end of new Sec. 9.21(c)(10)
to state that: (1) Payment for amputation of 4 fingers on 1 hand or
thumb alone cannot be combined with payment for loss due to uniplegia
or amputation of the same hand under new paragraph (c)(7) or (c)(9),
respectively; and (2) payment will be made for the higher payment for
amputation of 4 fingers on 1 hand or thumb alone under new paragraph
(c)(10) or loss due to limb reconstruction of the arm for the same
hand/arm under new paragraph (c)(14). These proposed amendments are
necessitated by the new tiered limb reconstruction standard.
6. New Sec. 9.21(c)(11)--Amputation of a Foot at or Above the Ankle
VA proposes to amend the note at the end of new Sec. 9.21(c)(11)
to state that: (1) Payment for loss under new paragraph (c)(11) cannot
be combined with the loss due to uniplegia or amputation of the foot
below the ankle under new paragraph (c)(7) or (12), respectively; and
(2) payment will be made for the higher payment for amputation of foot
under new paragraph (c)(11) or amputation of toes under new paragraph
(c)(13) or loss due to limb reconstruction of the leg under new
paragraph (c)(15). These proposed amendments are necessitated by the
new tiered limb reconstruction standard.
7. New Sec. 9.21(c)(12)--Amputation at or Above the
Metatarsophalangeal Joints of all Toes on 1 Foot
VA proposes to revise the note at the end of new Sec. 9.21(c)(12)
to state that: (1) Payment for amputation of all toes including the big
toe on 1 foot cannot be combined with losses under new paragraph (c)(7)
or (11) for the same foot; (2) the higher payment for amputation of all
toes including the big toe on 1 foot under new paragraph (c)(12) or
loss under new paragraph (c)(13) will be made for the same foot; and
(3) the higher payment for amputation of all toes including the big toe
on 1 foot under new paragraph (c)(12) or limb reconstruction of the leg
under new paragraph (c)(15) will be made for the same foot. These
proposed amendments are necessitated by the new tiered limb
reconstruction standard.
8. New Sec. 9.21(c)(13)--Amputation at or Above the
Metatarsophalangeal Joint(s) of Either the Big Toe, or the Other 4 Toes
on 1 Foot
VA proposes to add a note to new Sec. 9.21(c)(13) stating that:
(1) The higher payment for amputation of big toe only, or other 4 toes
on 1 foot, under new paragraph (c)(13) or uniplegia under new paragraph
(c)(7) will be made for the same foot; (2) the higher payment for
amputation of big toe only, or other 4 toes on 1 foot, under new
paragraph (c)(13) or amputation of the foot at or above the ankle under
new paragraph (b)(11) will be made for the same foot; (3) the higher
payment for amputation of big toe only, or other 4 toes on 1 foot,
under new paragraph (c)(13) or amputation at or above the
metatarsophalangeal joints under new paragraph (c)(12) will be made for
the same foot; and (4) the higher payment for amputation of big toe
only, or other 4 toes on 1 foot, under new paragraph (c)(13) or limb
reconstruction of the leg under new paragraph (c)(15) will be made for
the same foot. These proposed amendments are necessitated by the new
tiered limb reconstruction standard.
9. New Sec. 9.21(c)(14) and (15)--Limb Reconstruction
Current Sec. 9.20(e)(6)(xix) defines the term ``limb salvage'' as
``a series of operations designed to save an arm or leg with all of its
associated parts rather than amputate it,'' and also states that a
surgeon must certify that the ``option of amputation of the limb(s) was
a medically justified alternative to salvage, and the patient chose to
pursue salvage.'' However, TSGLI claim adjudicators, medical
professionals, and claimants have indicated that the decision to choose
salvage over amputation is a choice that is often not clearly indicated
in medical records and, therefore, it is difficult to substantiate a
claim for this loss.
Also, experts we consulted indicated that surgical teams do not
simply attempt to save or salvage a limb but also to reconstruct it to
allow for a return to some degree of functionality for the patient.
They also stated that the term ``reconstruction'' refers to rebuilding
a limb's skin, bone, nerve, and vascular system rather than repairing a
limb due to an open or closed fracture. Additionally, they stated that
there are four types of injuries that require limb construction and
four surgical procedures that constitute limb reconstruction. They
stated that not every patient undergoes all four types of surgeries,
but that at least one or more would be expected.
Based on this input, VA proposes to change the term ``limb
salvage'' to ``limb reconstruction'' in new Sec. 9.21(c)(14) and (15).
To qualify for a loss based upon ``limb reconstruction,'' a surgeon
would have to document that a member's limb has a: (1) Bony injury
requiring bone grafting to re-establish stability and enable mobility
of the limb; (2) soft tissue defect that requires grafting/flap
reconstruction to reestablish stability and enable mobility of the
limb; (3) vascular injury which requires vascular reconstruction to
restore blood flow and support bone and soft tissue regeneration; or
(4) nerve injury that requires nerve reconstruction to allow for motor
and sensory restoration and muscle re-enervation. These criteria
[[Page 50981]]
would focus on the critical issue of whether the limb has such
significant functional limitations from a traumatic event that a
surgeon would be medically justified in offering a member the option of
amputating the limb rather than reconstructing it.
VA also proposes to create a tiered standard for loss for
reconstruction of an arm or leg based upon the number and types of
surgery required in new paragraphs (c)(14) and (15). If a member
undergoes one of four surgeries, the member would receive $25,000. If a
member has two or more surgeries, the member would be entitled to
$50,000.
VA also proposes to add a note to new paragraph (c)(14) stating
that the higher payment for limb reconstruction of the arm or uniplegia
under new paragraph (c)(7) will be made for the same arm. The note
would also state that the higher payment for limb reconstruction of arm
or amputation of a hand at or above the wrist under new paragraph
(c)(9) will be made for the same arm, and that the higher payment for
limb reconstruction of the arm or amputation at or above the
metacarpophalangeal joint(s) of either the thumb or the other 4 fingers
on 1 hand under new paragraph (c)(10) will be made for the same arm.
VA proposes to add a note in new Sec. 9.21(c)(15) pertaining to
limb reconstruction of a leg stating that: (1) The higher payment for
limb reconstruction of leg or uniplegia under new paragraph (c)(7) will
be made for the same leg; (2) the higher payment for limb
reconstruction of the leg or amputation of a foot at or above the ankle
under new paragraph (c)(11) will be made for the same leg; (3) the
higher payment for limb reconstruction of leg or amputation at or above
the metatarsophalangeal joints of all toes on 1 foot under new
paragraph (c)(12) will be made for the same leg; and (4) the higher
payment for limb reconstruction of leg or amputation at or above the
metatarsophalangeal joint(s) of either the big toe, or the other 4 toes
on 1 foot under new paragraph (c)(13) will be made for the same leg.
10. New Sec. 9.21(c)(16)--Facial Reconstruction
VA proposes to amend the criteria for facial reconstruction in new
Sec. 9.21(c)(16) to clarify the nature and extent of loss required for
each payment under this paragraph. Discontinuity of the upper or lower
jaw and eyes would require bone loss; discontinuity of the nose would
require loss of cartilage or tissue; discontinuity of the upper or
lower lip would require tissue loss; and discontinuity of facial areas
would require loss of bone or tissue. We also propose to add a
requirement that a surgeon document that the criteria for ``facial
reconstruction'' are satisfied in order to establish the loss.
VA also proposes to revise the second note in new paragraph (c)(16)
by changing ``paragraphs 9.20(f)(1) through (18)'' to ``Sec.
9.21(c)(1) through (19)'' to incorporate the 2012 amendments to the
schedule that added genitourinary system losses and to make the note
consistent with the recodification of the schedule. VA also proposes to
add a third note stating that bone grafts for teeth implants would not
constitute facial reconstruction under new paragraph (c)(16) because
teeth implants do not involve a ``discontinuity defect'' of the jaw,
which would be defined in new Sec. 9.21(a)(7) as ``the absence of bone
and/or tissue from its normal bodily location.'' Teeth implants instead
involve placing additional tissue on top of the existing jaw to build
up the area for the implants. https://www.colgate.com/en-us/oral-health/cosmetic-dentistry/implants/single-tooth-implants.
11. New Sec. 9.21(c)(17)--Coma or TBI
We have revised the title of this loss by omitting ``from traumatic
injury'' because the phrase is redundant of new Sec. 9.20(e)(1)
defining a ``scheduled loss'' as a condition in new Sec. 9.21(c) ``if
directly caused by a traumatic injury.'' Current Sec.
9.20(e)(6)(xviii) does not actually define ``coma,'' but rather
contains the criterion for this scheduled loss. i.e., a Glasgow Coma
Scale (GCS) Score of 8 or less. The GCS possible values range from 3,
indicating deep coma, to 15, indicating normal consciousness. https://www.glasgowcomascale.org/faq. According to the Centers for Disease
Control, a GCS score of 8 or less indicates a severe head Injury.
https://www.cdc.gov/masstrauma/resources/gcs.pdf. We therefore propose
to incorporate the criterion for ``coma,'' i.e., a Glasgow Coma Score
of 8 or less, in the title of the loss.
12. New Sec. 9.21(c)(18)--Hospitalization Due to TBI
VA proposes to revise the first note in new Sec. 9.21(c)(18) to
explain that: (1) Payment for hospitalization would replace only the
first milestone in new Sec. 9.21(c)(17), i.e., 15 consecutive days of
coma or ADL loss; and (2) payment would be made for the 15-day period
of hospitalization or the first period of coma or ADL loss, whichever
occurs earlier.
The note would also be amended to state that, once payment has been
made under new Sec. 9.21(c)(18) based on hospitalization, coma, or ADL
loss, a member would not be entitled to additional payments for a
subsequent 15-day period of hospitalization due to the same traumatic
injury. This proposed amendment aligns with 38 U.S.C. 1980A(a)(2),
which states that, ``[i]f a member suffers more than one . . .
qualifying loss as a result of traumatic injury from the same traumatic
event, payment shall be made under [the schedule] for the single loss
providing the highest payment.'' (Emphasis added.)
Finally, VA would amend the note to state that, if a member
receives a TSGLI payment under new Sec. 9.21(c)(18) based upon
hospitalization, such payment may replace only the first payment for
loss of ADLs under new paragraph (c)(17), and the member would be
entitled to an additional payment for loss of ADLs only if the member
reaches a subsequent milestone for loss of ADLs. For example, if a
member suffers a TBI and is hospitalized for 16 days, the member would
be entitled to a TSGLI payment for 15 days of hospitalization under new
paragraph (c)(18). To obtain an additional payment for TBI based on
loss of ADLs under new paragraph (c)(17), the member would have to
suffer a loss of ADLs for an additional 14 days immediately after
discharge from the hospital to reach the next payment milestone of 30
consecutive days of ADL loss. If the member can perform ADLs
immediately after discharge from the hospital and then later has a
setback and loses ADLs, the consecutive day count would start anew.
VA would also amend the second note in current Sec. 9.20(f)(18) to
explain that the duration of hospitalization under new Sec.
9.21(c)(17) includes any period of time for a therapeutic trip as
defined in new Sec. 9.21(a)(11).
Finally, TBI, mental illnesses, and brain or neurologic disorders
can have similar symptomology and often require in-depth diagnostic
assessment to discern which is present or if both may be present. See
Jan E. Kennedy, et al., Posttraumatic Stress Disorder and Posttraumatic
Stress Disorder-Like Symptoms and Mild Traumatic Brain Injury, 44 J.
Rehabilitation Research & Dev. 895-920 (2007); D.G. Amen, et al.,
Functional Neuroimaging Distinguishes Posttraumatic Stress Disorder
from Traumatic Brain Injury in Focused and Large Community Datasets, 10
Plos One 1-22 (2015). Therefore, VA proposes to add a note to new Sec.
9.21(c)(18) stating that, if a member is hospitalized for 15
consecutive days for a diagnostic assessment for any mental illness
and/or brain or neurologic disorder, and if
[[Page 50982]]
the assessment concludes that the member has a mental illness or brain
or neurologic disorder only, the member would not be entitled to TSGLI
under this paragraph. In such cases, the hospitalization would be
caused solely by an illness or disease, such as posttraumatic stress
disorder, which falls under the exclusions from traumatic injury
pursuant to 38 CFR 9.20(c)(2)(i) and (ii). However, if a member is
hospitalized for 15 consecutive days for a diagnostic assessment to
determine whether the member has TBI, the loss would be payable if a
member is diagnosed with TBI, TBI and PTSD, or PTSD and not TBI. If a
member is hospitalized for 15 consecutive days for a diagnostic
assessment to determine whether the member has PTSD, the loss would be
payable if the member has TBI or TBI and PTSD.
13. New Sec. 9.21(c)(21)--Hospitalization Due to OTI
VA proposes to amend the first and second notes under new Sec.
9.21(c)(21) for loss based on hospitalization due to OTI. These
amendments would be the same as the amendments to the first and second
notes in new Sec. 9.21(c)(18). The first note in current Sec.
9.20(f)(21) states that ``[p]ayment for hospitalization replaces the
first payment period in loss 19.'' VA proposes to amend the note to
refer to ``loss 20'' for OTI resulting in inability to perform ADLs
rather than loss 19 and to state that payment for hospitalization would
only replace the first milestone in new Sec. 9.21(c)(20), i.e., 30
consecutive days of ADL loss. This corrects a scrivener's error in 2011
when genitourinary losses were added to the schedule of losses. 76 FR
75458 (Dec. 2, 2011).
The first note would also be amended to state that payment would be
made for the 15-day period of hospitalization or the first period of
ADL loss, whichever occurs earlier and that, once payment has been made
under new Sec. 9.21(c)(20) on the basis of hospitalization or ADL
loss, a member would not be entitled to additional payments for a
subsequent 15-day period of hospitalization due to the same OTI. For
example, if a member suffers an OTI due to a motorcycle accident, is
hospitalized for 10 days, and experiences loss of ADL for 30 days, the
member would be entitled to a TSGLI payment based on loss of ADLs for
30 days. If the member is subsequently hospitalized for another
consecutive 15 days, a month later for the same motorcycle accident,
the member would not be entitled to an additional TSGLI payment for
hospitalization. These proposed amendments are consistent with 38
U.S.C. 1980A(a)(2), which states for payment under the schedule ``for
the single loss providing the highest payment'' if a member suffers
more than one qualifying loss as a result of traumatic injury from the
same traumatic event.
Finally, VA would amend the first note to state that, if a member
receives a TSGLI payment under new paragraph (c)(20) based upon loss of
ADLs, the member would be entitled to an additional payment for loss of
ADLs under new paragraph (c)(20) only if the member reaches a
subsequent milestone for loss of ADLs in new paragraph (c)(20), i.e.,
60, 90 or 120 consecutive days of ADL loss without a break in the
consecutive day period where no ADL loss is present. This proposed
amendment aligns with the design of the TSGLI program, which is to
provide benefits payments for severe traumatic injuries that require an
extended period of rehabilitation. 70 FR 75940. Requiring a member to
reach the next payment milestone without a break between the
consecutive days ensures that the injury is equivalent in severity to
other losses under the schedule.
VA would also amend the second note in new Sec. 9.21(c)(21) to
explain that the duration of hospitalization includes a period of time
between admission and discharge during which a member takes a
therapeutic trip as defined in new Sec. 9.21(a)(11).
III. Petition for Rulemaking
On March 16, 2015, a petition for rulemaking was submitted to the
Secretary of Veterans Affairs requesting that VA:
1. Amend the definition of ``traumatic event'' in current Sec.
9.20(b)(1) to include ``application of . . . explosive ordnance . . .
causing damage to a living being.''
2. Amend the definition of ``traumatic injury'' in current Sec.
9.20(c)(2)(ii) to include a ``physical illness or disease . . . caused
by . . . explosive ordnance.''
3. Amend the list of exclusions in current Sec. 9.20(e)(4)(i) to
provide that a scheduled loss resulting from a ``physical illness or
disease caused by explosive ordnance'' will not be excluded from TSGLI
coverage.
4. Add the following definition of ``explosive ordnance'' to
current Sec. 9.20(e)(6): ``all munitions containing explosives, . . .
includ[ing], but . . . not limited to, improvised explosive devices
(IEDs).''
In considering this proposal, VA conducted a review of medical
literature on the numbers, types, and onset period of illnesses and
diseases resulting from explosive ordnance exposure. VA also
interviewed a range of medical experts in the fields of traumatic brain
injury, concussive force trauma, combat trauma, and retained toxic
fragment impacts as well as epidemiologists and other medical
researchers studying the impacts of blast injuries on today's military.
Based upon this review of the issue, VA denies the petition for
rulemaking for the following reasons.
A. Definition of ``Traumatic Event''
Current Sec. 9.20(b) defines a ``traumatic event'' as ``the
application of external force, violence, chemical, biological, or
radiological weapons, or accidental ingestion of a contaminated
substance causing damage to a living being.'' We agree with petitioner
that IEDs are a unique hazard of military service. Therefore, since the
start of the TSGLI program on December 1, 2005, explosion of an
ordnance including an improvised explosive device causing damage to a
living being has been considered as a traumatic event, i.e., damage
caused by application of external force due to fragments of debris
propelled by the explosion or due to a member being thrown to the
ground or into an object. Gulf War & Health, Volume 7: Long-Term
Consequences of Traumatic Brain Injury, at 7 (2009). Between December
22, 2005, and July 31, 2019, the TSGLI program provided more than $357
million in benefits to 6,207 servicemembers who suffered a traumatic
injury due to an improvised explosive device, mortar attack, shrapnel,
or rocket propelled grenade that resulted in a scheduled loss. VA,
therefore, sees no need to amend Sec. 9.20(b)(1) to include an
explosive ordnance or to add a definition of improvised explosive
device to Sec. 9.20(e)(6).
B. Illness or Disease Caused by Explosive Ordnance
The petition seeks to amend current 38 CFR 9.20(c)(2)(ii) and
(e)(4)(i) to ensure TSGLI coverage of physical illness or disease
caused by TBI, which has been called a signature injury of the conflict
in Iraq. Petition at 12-15. Petitioner contends that the harm caused by
explosion of an ordnance is ``just like'' application of chemical,
biological, and radiological weapons and accidental ingestion of a
contaminated substance because they ``produce immediate bodily harm but
their biological effects may not immediately manifest'' and ``may have
a latency of months to years before manifesting.'' Petition at 23.
Petitioner's request is inconsistent with the nature
[[Page 50983]]
of TSGLI, which is modeled on AD&D insurance, and congressional intent.
The plain language of 38 U.S.C. 1980A(a)(1) and (2), (b)(1), (c)(1)
and (2) authorizes TSGLI benefits for a qualifying loss resulting
directly from a ``traumatic injury.'' The word ``disease'' does not
appear in the statute. Consistent with the maxim ``expressio unius est
exclusio alterius,'' Congress knows how to include TSGLI coverage for
diseases if it so desires, and it did not do so. See Russello v. United
States, 464 U.S. 16, 23 (1983) (``[W]here Congress includes particular
language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.'').
VA implemented 38 U.S.C. 1980A in 2005 by defining the term
``traumatic injury'' in current 38 CFR 9.20(c)(1) to mean ``physical
damage . . . caused by'' the ``application of external force, violence,
chemical, biological, or radiological weapons, or accidental ingestion
of a contaminated substance.'' In the 2005 interim final-rule notice,
VA stated that ``[w]e believe that inherent in the term `traumatic
injury' is the notion that the injury occurs immediately.'' 70 FR
75,941; see 10 Couch on Insurance Sec. 139:28, at 139-64 (``accidental
bodily injury has been defined as a localized abnormal condition of the
living body directly and contemporaneously caused by accident''). VA
expressly excluded losses caused by a ``disease'' from TSGLI coverage
in current 38 CFR 9.20(c)(2)(ii) and (e)(4)(i), which states that
``traumatic injury'' does not include damage to a living body caused by
a disease, whether physical or mental in nature. 70 FR 75,941. VA
stated that the ``term `injury' refers to the result of an external
trauma rather than a degenerative process, while the ``term `disease' .
. . refers to some type of internal infection or degenerative
process.'' Id. (citing VAOPGCPREC 86-90).
VA's conclusion that TSGLI only extends to traumatic injuries which
cause immediate harm and require immediate treatment as compared to
diseases is supported by the legislative history when 38 U.S.C. 1980A
was enacted in 2005. TSGLI coverage was intended for injuries occurring
immediately after a traumatic event, e.g., wounds suffered on the
battlefield, and to provide financial support when the wounded
servicemembers return home and are undergoing rehabilitation prior to
medical discharge from service. See 151 Cong. Rec. 7454-55 (2005).
VA, however, defined ``injury'' to include physical illness or
disease ``caused by a pyogenic infection, chemical, biological or
radiological weapons, or accidental ingestion of a contaminated
substance'' because ``including immediate traumatic harm due to those
unique hazards of military service is consistent with the purpose of
TSGLI.'' 70 FR 75,941 (emphasis added); 38 CFR 9.20(c)(2)(ii). VA
stated that the ``physical damage resulting in a covered loss would
generally occur immediately and require prompt medical treatment.'' 70
FR 75,941.
Scientific reports indicate that the consequences of a TBI may not
become manifest for a long period of time. For example, the Institute
of Medicine report, Long-Term Consequences of Traumatic Brain Injury,
at 7, found a ``weak but significant association between TBI and
meningioma and of an increase in risk of brain tumors 10 years or more
after TBI; that suggests a long latent period before clinical
presentation.'' See also id. at 355. A study showing a link between TBI
and increased risk of stroke in the first five years after injury found
that, in the cohort studied, the average time between a patient's use
of health care services and onset of stroke was 543 days for patients
with TBI. Yi-Hua Chen, et al., Patients with Traumatic Brain Injury:
Population-Based Study Suggests Increased Risk of Stroke, 42 Stroke
2733-39 (2011). Studies of occurrence of Parkinson's disease following
TBI also show a delayed onset. Lindsay Wilson, et al., Traumatic Brain
Injury 4: The Chronic and Evolving Neurological Consequences of
Traumatic Brain Injury, 16 The Lancet 813-825 (2017).
Because Congress intended to provide TSGLI compensation for
``injuries'' rather than diseases occurring immediately after a
traumatic event and that require prompt medical treatment, the
Secretary denies the petition to provide TSGLI coverage for physical
illness or disease caused by TBI that ``may not immediately manifest''
and ``may have a latency of months to years before manifesting.''
Paperwork Reduction Act
This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Executive Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess the
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 effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is not a significant regulatory action under Executive Order
12866.
VA's impact analysis can be found as a supporting document at
http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's website at
http://www.va.gov/orpm by following the link for ``VA Regulations
Published From FY 2004 Through Fiscal Year to Date.''
This proposed rule is not expected to be an E.O. 13771 regulatory
action because this proposed rule is not significant under E.O. 12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would 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. The provisions contained in this proposed rulemaking
are specifically managed, processed, and conducted within VA and
through Prudential Insurance Company of America, which is not
considered to be a small entity. Therefore, pursuant to 5 U.S.C.
605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance number and title for the
program affected by this document is 64.103, Life Insurance for
Veterans.
[[Page 50984]]
List of Subjects in 38 CFR Part 9
Life insurance, Servicemembers, Veterans.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Brooks D.
Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved
this document on July 17, 2020, for publication.
Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 9 as follows:
PART 9--SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP
LIFE INSURANCE
0
1. The authority citation for Part 9 continues to read as follows:
Authority: 38 U.S.C. 501, 1965-1980A, unless otherwise noted.
0
2. Amend Sec. 9.20 by:
0
a. Revising paragraph (b)(1);
0
b. Redesignating paragraph (c)(3) as (c)(4) and adding a new paragraph
(c)(3);
0
c. Revising paragraphs (d)(2) and (4), and (e)(1), (e)(3)(i)(C) and
(ii), and (e)(6);
0
c. Removing paragraph (f);
0
d. Revising paragraph (g);
0
e. Redesignating paragraph (h) as paragraph (f) and revising newly
redesignated paragraph (f);
0
f. Redesignating paragraphs (i) through (k) as paragraphs (h) through
(j) respectively and revising newly redesignated paragraphs (h) through
(j).
The revisions read as follows:
Sec. 9.20 Traumatic injury protection.
* * * * *
(b) * * * (1) A traumatic event is damage to a living being
occurring on or after October 7, 2001, caused by:
(i) Application of an external force;
(ii) Application of violence or chemical, biological, or
radiological weapons;
(iii) Accidental ingestion of a contaminated substance;
(iv) Exposure to low environmental temperatures, excessive heat, or
documented non-penetrating blast waves; or
(v) An insect bite or sting or animal bite.
* * * * *
(c) What is a traumatic injury?
* * * * *
(3) The term traumatic injury includes anaphylactic shock directly
caused by an insect bite or sting or animal bite.
* * * * *
(d) * * *
(2) You must suffer a scheduled loss that results directly from a
traumatic injury and from no other cause.
(i) A scheduled loss does not result directly from a traumatic
injury and from no other cause if a pre-existing illness, condition, or
disease or a post-service injury substantially contributed to the loss.
(ii) A scheduled loss results directly from a traumatic injury and
no other cause if the loss is caused by a medical or surgical procedure
used to treat the traumatic injury.
* * * * *
(4) You must suffer a scheduled loss under Sec. 9.21(c) within two
years of the traumatic injury.
(i) If a loss with a required time period milestone begins but is
not completed within two years of the traumatic injury, the loss would
nonetheless qualify for TSGLI if the requisite time period of loss
continues uninterrupted and concludes after the end of the two-year
period.
(ii) If a required time period for a loss is satisfied before the
end of the two-year period and a member suffers another period of loss
after expiration of the two-year time limit, the member is not entitled
to TSGLI for this time period of loss.
* * * * *
(e) * * * (1) The term ``scheduled loss'' means a condition listed
in the schedule in Sec. 9.21(c) if directly caused by a traumatic
injury and from no other cause. A scheduled loss is payable at the
amount specified in the schedule.
* * * * *
(3) * * *
(i) * * *
(C) Diagnostic procedures, preventive medical procedures such as
inoculations, medical or surgical treatment for an illness or disease,
or any complications arising from such procedures or treatment, unless
the diagnostic procedure or medical or surgical treatment is necessary
to treat a traumatic injury;
* * * * *
(ii) Sustained while a member was committing an act that clearly
violated a penal law classifying such an act as a felony.
* * * * *
(6) Definitions. For purposes of this section and Sec. 9.21--
(i) The term biological weapon means biological agents or
microorganisms intended to kill, seriously injure, or incapacitate
humans through their physiological effects.
(ii) The term chemical weapon means chemical substances intended to
kill, seriously injure, or incapacitate humans through their
physiological effects.
(iii) The term contaminated substance means food or water made
unfit for consumption by humans because of the presence of chemicals,
radioactive elements, bacteria, or organisms.
(iv) The term external force means a sudden or violent impact from
a source outside of the body that causes an unexpected impact and is
independent of routine body motions such as twisting, lifting, bending,
pushing, or pulling.
(v) The term ingestion means to take into the gastrointestinal
tract by means of the mouth.
(vi) The term medical professional means a licensed practitioner of
the healing arts acting within the scope of his or her practice,
including, e.g., a licensed physician, optometrist, nurse practitioner,
registered nurse, physician assistant, or audiologist.
(vii) The term medically incapacitated means an individual who has
been determined by a medical professional to be physically or mentally
impaired by physical disability, mental illness, mental deficiency,
advanced age, chronic use of drugs or alcohol, or other causes that
prevent sufficient understanding or capacity to manage his or her own
affairs competently.
(viii) The term pyogenic infection means a pus-producing infection.
(ix) The term radiological weapon means radioactive materials or
radiation-producing devices intended to kill, seriously injure, or
incapacitate humans through their physiological effects.
(f) How does a member make a claim for traumatic injury protection
benefits? (1)(i) A member who believes he or she qualifies for
traumatic injury protection benefits must complete and sign Part A of
the TSGLI Benefits Form and submit evidence substantiating the member's
traumatic injury and resulting loss. A medical professional must
complete and sign Part B of the Application for TSGLI Benefits Form.
(ii) If a medical professional certifies in Part B of the
Application for TGSLI Benefits Form that a member is unable to sign
Part A of the Form because the member is medically incapacitated, the
Form must be signed by one of the following: The member's guardian; if
none, the member's agent or attorney
[[Page 50985]]
acting under a valid Power of Attorney; if none, the member's military
trustee.
(iii) If a member suffered a scheduled loss as a direct result of
the traumatic injury, survived seven full days from the date of the
traumatic event, and then died before the maximum benefit for which the
service member qualifies is paid, the beneficiary or beneficiaries of
the member's Servicemembers' Group Life Insurance policy should
complete an Application for TSGLI Benefits Form.
(2) If a member seeks traumatic injury protection benefits for a
scheduled loss occurring after submission of a completed Application
for TSGLI Benefits Form for a different scheduled loss, the member must
submit a completed Application for TSGLI Benefits Form for the new
scheduled loss and for each scheduled loss that occurs thereafter and
for each increment of a scheduled loss that occurs thereafter. For
example, if a member seeks traumatic injury protection benefits for a
scheduled loss due to coma from traumatic injury and/or the inability
to carry out activities of daily living due to traumatic brain injury
(Sec. 9.21(c)(17)), or the inability to carry out activities of daily
living due to loss directly resulting from a traumatic injury other
than an injury to the brain (Sec. 9.21(c)(20)), a completed
Application for TSGLI Benefits Form must be submitted for each
increment of time for which TSGLI is payable. Also, for example, if a
member suffers a scheduled loss due to a coma, a completed Application
for TSGLI Benefits Form should be filed after the 15th consecutive day
that the member is in the coma, for which $25,000 is payable. If the
member remains in a coma for another 15 days, another completed
Application for TSGLI Benefits Form should be submitted and another
$25,000 will be paid.
(g) How will the uniformed service decide a TSGLI claim?
(1) Each uniformed service will certify its own members for
traumatic injury protection benefits based upon section 1032 of Public
Law 109-13, section 501 of Public Law 109-233, and this section. The
uniformed service will certify whether a member was insured under
Servicemembers' Group Life Insurance at the time of the traumatic
injury and whether the member sustained a qualifying traumatic injury
and qualifying loss.
(2) The uniformed service office may request additional evidence
from the member if the record does not contain sufficient evidence to
decide the member's claim.
(3) The uniformed service office shall consider all medical and lay
evidence of record, including all evidence provided by the member, and
determine its probative value. When there is an approximate balance of
positive and negative evidence regarding any issue material to the
determination of TSGLI benefits, the uniformed service shall give the
benefit of the doubt to the member.
(4) Notice of a decision regarding a member's eligibility for
traumatic injury protection benefits will include an explanation of the
procedure for obtaining review of the decision, and all negative
decisions shall include a statement of the basis for the decision and a
summary of the evidence considered.
(h) How does a member or beneficiary appeal an adverse eligibility
determination? (1) Each uniformed service has a three-tiered appeal
process. The first tier of appeal is called a reconsideration, followed
by a second-level appeal and then a third-level appeal. A member,
beneficiary, or other person eligible to submit a claim under paragraph
(f)(1)(ii) or (iii) may submit an appeal using the appeal process of
the uniformed service that issued the original decision.
(i) Reconsideration. (A) Reconsideration of an eligibility
determination, such as whether the loss occurred within 730 days of the
traumatic injury, whether the member was insured under Servicemembers'
Group Life Insurance when the traumatic injury was sustained, or
whether the injury was self-inflicted or whether a loss of hearing was
total and permanent, is initiated by filing, with the office of the
uniformed service identified in the eligibility decision within one
year of the date of a denial of eligibility, a written notice of appeal
that identifies the issues for which reconsideration is sought.
(B) The uniformed service TSGLI office will review the claim,
including evidence submitted with the notice of appeal by or on behalf
of the member that was not previously part of the record before the
uniformed service, and issue a decision on the claim.
(ii) Second-level appeal. (A) A second-level appeal of the
reconsideration decision is initiated by filing, with the second-level
appeal office of the uniformed service within one year of the date of
the reconsideration decision, a written notice of appeal that
identifies the issues being appealed.
(B) The uniformed service second-level appeal office will review
the claim, including evidence submitted with the notice of appeal by or
on behalf of the member that was not previously part of the record
before the uniformed service, and issue a decision on the claim.
(iii) Third-level appeal. (A) A third-level review of the second-
level uniformed service appeal office is initiated by filing, with the
third-level appeal office of the uniformed service within one year of
the date of the decision by the second-level appeal office of the
uniformed service, a written notice of appeal that identifies the
issues being appealed.
(B) The uniformed service third-level appeal office will review the
claim, including evidence submitted with the notice of appeal by or on
behalf of the member that was not previously part of the record before
the uniformed service, and issue a decision on the claim.
(2) If a timely notice of appeal seeking reconsideration of the
initial decision by the uniformed service or seeking review of the
decision by the second-level uniformed service appeal office is not
filed, the initial decision by the uniformed service or the decision by
the second-level uniformed service appeal office, respectively, shall
become final, and the claim will not thereafter be readjudicated or
allowed except as provided in paragraph (h)(3).
(3) New and material evidence. (i) If a member, beneficiary, or
other person eligible to submit a claim under paragraph (f)(1)(ii) or
(iii) submits new and material evidence with respect to a claim that
has been finally disallowed as provided in paragraph (h)(2), the
uniformed service office will consider the evidence, determine its
probative value, and readjudicate the claim. New and material evidence
is evidence that was not previously part of the record before the
uniformed service, is not cumulative or redundant of evidence of record
at the time of the prior decision and is likely to have a substantial
effect on the outcome.
(ii) A decision finding that new and material evidence was not
submitted may be appealed in accordance with paragraph (h)(1).
(4) Nothing in this section precludes a member from pursuing legal
remedies under 38 U.S.C. 1975 and 38 CFR 9.13. However, if a member
files suit in U.S. district court after an adverse initial decision on
a TSGLI claim by a uniformed service, the member may not file an appeal
pursuant to paragraph (h)(1) if the lawsuit is pending before a U.S.
district court, U.S. court of appeals, or U.S. Supreme Court or the
time for appeal or filing a petition for a writ of certiorari has not
expired. If a member files suit in U.S. district court after filing an
appeal pursuant to paragraph (h)(1), the appeal will be stayed if the
lawsuit
[[Page 50986]]
is pending before a U.S. district court, U.S. court of appeals, or U.S.
Supreme Court or the time for appeal or filing a petition for a writ of
certiorari has not expired.
(i) Who will be paid the traumatic injury protection benefit? The
injured member who suffered a scheduled loss will be paid the traumatic
injury protection benefit in accordance with 38 U.S.C. 1980A except
under the following circumstances:
(A) If a member has been determined by a medical professional, in
Part B of the Application for TSGLI Benefits Form, to be medically
incapacitated, the member's guardian or, or if there is no guardian,
the member's agent or attorney acting under a valid Power of Attorney
will be paid the benefit on behalf of the member.
(B) If no guardian, agent, or attorney is authorized to act as the
member's legal representative, a military trustee who has been
appointed under the authority of 37 U.S.C. 602 will be paid the benefit
on behalf of the member. The military trustee will report the receipt
of the traumatic injury benefit payment and any disbursements from that
payment to the Department of Defense.
(C) If a member dies before payment is made, the beneficiary or
beneficiaries who will be paid the benefit will be determined in
accordance with 38 U.S.C. 1970(a).
(j) The Traumatic Servicemembers' Group Life Insurance program will
be administered in accordance with this rule, except to the extent that
any regulatory provision is inconsistent with subsequently enacted
applicable law.
0
3. Redesignate Sec. Sec. 9.21 and 9.22 as Sec. Sec. 9.22 and 9.23 and
add a new Sec. 9.21 to read as follows:
Sec. 9.21 Schedule of Losses.
(a) Definitions. For purposes of the Schedule of Losses in
paragraph (c)--
(1) The term accommodating equipment means tools or supplies that
enable a member to perform an activity of daily living without the
assistance of another person, including, but not limited to, a
wheelchair; walker or cane; reminder applications; Velcro clothing or
slip-on shoes; grabber or reach extender; raised toilet seat; wash
basin; shower chair; or shower or tub modifications such as wheelchair
access or no-step access, grab-bar or handle.
(2) The term adaptive behavior means compensating skills that allow
a member to perform an activity of daily living without the assistance
of another person.
(3) The term amputation means the severance or removal of a limb or
genital organ or part of a limb or genital organ resulting from trauma
or surgery. With regard to limbs, an amputation above a joint means a
severance or removal that is closer to the body than the specified
joint is.
(4) The term assistance from another person means that a member,
even while using accommodating equipment or adaptive behavior, is
nonetheless unable to perform an activity of daily living unless
another person physically supports the member, is needed to be within
arm's reach of the member to provide assistance because the member's
ability fluctuates, or provides oral instructions to the member while
the member attempts to perform the activity of daily living.
(5) The term avulsion means a forcible detachment or tearing of
bone and/or tissue due to a penetrating or crush injury.
(6) The term consecutive means to follow in uninterrupted
succession.
(7) The term discontinuity defect means the absence of bone and/or
tissue from its normal bodily location, which interrupts the physical
consistency of the face and impacts at least one of the following
functions: Mastication, swallowing, vision, speech, smell, or taste.
(8) The term hospitalization means admission to a ``hospital'' as
defined in 42 U.S.C. 1395x(e) or ``skilled nursing facility'' as
defined in 42 U.S.C. 1395i-3(a).
(9) The term inability to carry out activities of daily living
means the inability to perform at least two of the six following
functions without assistance from another person, even while using
accommodating equipment or adaptive behavior, as documented by a
medical professional.
(i) Bathing means washing, while in a bathtub or shower or using a
sponge bath, at least three of the six following regions of the body in
its entirety: Head and neck, back, front torso, pelvis (including the
buttocks), arms, or legs.
(ii) Continence means complete control of bowel and bladder
functions or management of a catheter or colostomy bag, if present.
(iii) Dressing means obtaining clothes and shoes from a closet or
drawers and putting on the clothing and shoes, excluding tying
shoelaces or use of belts, buttons, or zippers.
(iv) Eating means moving food from a plate to the mouth or
receiving nutrition via a feeding tube or intravenously but does not
mean preparing or cutting food or obtaining liquid nourishment through
a straw or cup.
(v) Toileting means getting on and off the toilet; taking clothes
off before toileting or putting clothes on after toileting; cleaning
organs of excretion after toileting; or using a bedpan or urinal.
(vi) Transferring means moving in and out of a bed or chair.
(10) The term permanent means clinically stable and reasonably
certain to continue throughout the lifetime of the member.
(11) The term therapeutic trip means an approved pass by the
member's attending physician to leave a hospital as defined in 42
U.S.C. 1395x(e) or ``skilled nursing facility'' as defined in 42 U.S.C.
1395i-3(a), accompanied or unaccompanied by hospital or facility staff,
as part of a member's treatment plan and with which the member is able
to return without having to be readmitted to the hospital or facility.
(b)(1) For losses listed in paragraphs (c)(1) through (19) of this
section--
(i) Except where noted otherwise, multiple losses resulting from a
single traumatic event may be combined for purposes of a single
payment.
(ii) The total payment amount may not exceed $100,000 for losses
resulting from a single traumatic event.
(2) For losses listed in paragraphs (c)(20) and (21) of this
section--
(i) Payments may not be made in addition to payments for losses
under paragraphs (c)(1) through (19); instead, the higher amount will
be paid.
(ii) The total payment amount may not exceed $100,000 for losses
resulting from a single traumatic event.
(3) Required period of consecutive days of loss. For losses in
paragraphs (c)(17) through (18) and (20) through (21)--
(i) A period of consecutive days of loss that is interrupted by a
day or more during which the criteria for the scheduled loss are not
satisfied will not be added together with a subsequent period of
consecutive days of loss. The counting of consecutive days starts over
at the end of any period in which the criteria for a loss are not
satisfied.
(ii) A required period of consecutive days will be satisfied if a
loss begins within two years of a traumatic injury and continues
without interruption after the end of the two-year period. A subsequent
period of consecutive days of a scheduled loss will be satisfied if it
follows uninterrupted immediately after an initial period of
consecutive days of loss that ended after expiration of the two-year
period.
(c) Schedule of Losses. (1) Total and permanent loss of sight is:
(i) Visual acuity in the eye of 20/200 or less/worse with
corrective lenses lasting at least 120 days;
(ii) Visual acuity in the eye of greater/better than 20/200 with
corrective
[[Page 50987]]
lenses and a visual field of 20 degrees of less lasting at least 120
days; or
(iii) Anatomical loss of the eye.
(iv) The amount payable for the loss of each eye is $50,000.
(2) Total and permanent loss of hearing is:
(i) Average hearing threshold sensitivity for air conduction of at
least 80 decibels, based on hearing acuity measured at 500, 1,000, and
2,000 Hertz via pure tone audiometry by air conduction, without
amplification device
(ii) The amount payable for loss of one ear is $25,000. The amount
payable for the loss of both ears is $100,000.
(3) Total and permanent loss of speech is:
(i) Organic loss of speech or the ability to express oneself, both
by voice and whisper, through normal organs for speech, notwithstanding
the use of an artificial appliance to simulate speech.
(ii) The amount payable for the loss of speech is $50,000.
(4) Quadriplegia is:
(i) Total and permanent loss of voluntary movement of all four
limbs resulting from damage to the spinal cord, associated nerves, or
brain.
(ii) The amount payable for quadriplegia is $100,000.
(5) Hemiplegia is:
(i) Total and permanent loss of voluntary movement of the upper and
lower limbs on one side of the body from damage to the spinal cord,
associated nerves, or brain.
(ii) The amount payable for hemiplegia is $100,000.
(6) Paraplegia is:
(i) Total and permanent loss of voluntary movement of both lower
limbs resulting from damage to the spinal cord, associated nerves, or
brain.
(ii) The amount payable for paraplegia is $100,000.
(7) Uniplegia is:
(i) Total and permanent loss of voluntary movement of one limb
resulting from damage to the spinal cord, associated nerves, or brain.
(ii) The amount payable for the loss of each limb is $50,000.
(iii) Payment for uniplegia of arm cannot be combined with loss 9
or 10 for the same arm. The higher payment for uniplegia or loss 14
will be made for the same arm. Payment for uniplegia of leg cannot be
combined with loss 11 or 12 for the same leg. The higher payment for
uniplegia or loss 13 will be made for the same leg. The higher payment
for uniplegia or loss 15 will be made for the same leg.
(8) Burns: (i) The percentage of the body burned may be measured
using the Rule of Nines or any means of measurement generally accepted
within the medical profession.
(ii) The amount payable for partial thickness burns covering 20% of
face or body that do not require skin grafting is $50,000.
(iii) The amount payable for partial thickness burns or worse
located on the face, hands, feet, genitalia, perineum, ankles, knees,
hips, wrists, elbows, or shoulders that require grafting is $100,000.
(iv) The amount payable for full thickness burns covering 20% of
the face or body is $100,000.
(v) Road rash, which is a skin abrasion caused by sliding on a hard
or rough surface, will be evaluated under paragraphs (c)(20) and (21).
(9) Amputation of a hand at or above the wrist: (i) The amount
payable for the loss of each hand is $50,000.
(ii) Payment for amputation of hand cannot be combined with payment
for loss 7 or 10 for the same hand. The higher payment for amputation
of hand or loss 14 will be made for the same hand.
(10) Amputation at or above the metacarpophalangeal joint(s) of
either the thumb or the other 4 fingers on 1 hand: (i) The amount
payable for the loss of each hand is $50,000.
(ii) Payment for amputation of 4 fingers on 1 hand or thumb alone
cannot be combined with payment for loss 7 or 9 for the same hand. The
higher payment for amputation of 4 fingers on 1 hand or thumb alone or
loss 14 will be made for the same hand. Payment for loss of the thumb
cannot be made in addition to payment for loss of the other 4 fingers
for the same hand.
(11) Amputation of a foot at or above the ankle: (i) The amount
payable for the loss of each foot is $50,000.
(ii) Payment for amputation of foot cannot be combined with loss 7
or 12 for the same foot. The higher payment for amputation of foot or
Loss 13 will be made for the same foot. The higher payment for
amputation of foot or Loss 15 will be made for the same foot.
(12) Amputation at or above the metatarsophalangeal joints of all
toes on 1 foot: (i) The amount payable for the loss of each foot is
$50,000.
(ii) Payment for amputation of all toes including the big toe on 1
foot cannot be combined with loss 7 or 11 for the same foot. The higher
payment for amputation of all toes including the big toe on 1 foot or
loss 13 will be made for the same foot. The higher payment for
amputation of all toes including the big toe on 1 foot or loss 15 will
be made for the same foot.
(13) Amputation at or above the metatarsophalangeal joint(s) of
either the big toe or the other 4 toes on 1 foot: (i) The amount
payable for the loss of each foot is $25,000.
(ii) The higher payment for amputation of big toe only, or other 4
toes on 1 foot, or loss 7 will be made for the same foot. The higher
payment for amputation of big toe only, or other 4 toes on 1 foot, or
loss 11 will be made for the same foot. The higher payment for
amputation of big toe only, or other 4 toes on 1 foot, or loss 12 will
be made for the same foot. The higher payment for amputation of big toe
only, or other 4 toes on 1 foot, or loss 15 will be made for the same
foot.
(14) Limb reconstruction of arm (for each arm): (i) A surgeon must
certify that a member had surgery to treat at least one of the
following injuries to a limb:
(A) Bony injury requiring bone grafting to re-establish stability
and enable mobility of the limb;
(B) Soft tissue defect requiring grafting/flap reconstruction to
reestablish stability;
(C) Vascular injury requiring vascular reconstruction to restore
blood flow and support bone and soft tissue regeneration; or
(D) Nerve injury requiring nerve reconstruction to allow for motor
and sensory restoration and muscle re-enervation.
(ii) The amount payable for losses involving 1 of the 4 listed
surgeries is $25,000. The amount payable for losses involving 2 or more
of the 4 listed surgeries is $50,000.
(iii) The higher payment for limb reconstruction of arm or loss 7
will be made for the same arm. The higher payment for limb
reconstruction of arm or loss 9 will be made for the same arm. The
higher payment for limb reconstruction of arm or loss 10 will be made
for the same arm.
(15) Limb reconstruction of leg (for each leg): (i) A surgeon must
certify that a member had at least one of the following injuries to a
limb requiring the identified surgery for the same limb:
(A) Bony injury requiring bone grafting to re-establish stability
and enable mobility of the limb;
(B) Soft tissue defect requiring grafting/flap reconstruction to
reestablish stability;
(C) Vascular injury requiring vascular reconstruction to restore
blood flow and support bone and soft tissue regeneration; or
(D) Nerve injury requiring nerve reconstruction to allow for motor
and sensory restoration and muscle re-enervation.
(ii) The amount payable for losses involving 1 of the 4 listed
surgeries is
[[Page 50988]]
$25,000. The amount payable for losses involving 2 or more of the 4
listed surgeries is $50,000.
(iii) The higher payment for limb reconstruction of leg or loss 7
will be made for the same leg. The higher payment for limb
reconstruction of leg or loss 11 will be made for the same leg. The
higher payment for limb reconstruction of leg or loss 12 will be made
for the same leg. The higher payment for limb reconstruction of leg or
loss 13 will be made for the same leg.
(16) Facial reconstruction: (i) A surgeon must certify that a
member had surgery to correct a traumatic avulsion of the face or jaw
that caused a discontinuity defect to one or more of the following
facial areas:
(A) Surgery to correct discontinuity loss involving bone loss of
the upper or lower jaw-the amount payable for this loss is $75,000;
(B) Surgery to correct discontinuity loss involving cartilage or
tissue loss of 50% or more of the cartilaginous nose-the amount payable
for this loss is $50,000;
(C) Surgery to correct discontinuity loss involving tissue loss of
50% or more of the upper or lower lip-the amount payable for loss of
one lip is $50,000, and the amount payable for loss of both lips is
$75,000;
(D) Surgery to correct discontinuity loss involving bone loss of
30% or more of the periorbita-the amount payable for loss of each eye
is $25,000;
(E) Surgery to correct discontinuity loss involving loss of bone or
tissue of 50% or more of any of the following facial subunits:
Forehead, temple, zygomatic, mandibular, infraorbital, or chin-the
amount payable for each facial subunit is $25,000.
(ii) Losses due to facial reconstruction may be combined with each
other, but the maximum benefit for facial reconstruction may not exceed
$75,000.
(iii) Any injury or combination of losses under facial
reconstruction may be combined with other losses in Sec. 9.21(c)(1)-
(19) and treated as one loss, provided that all losses are the result
of a single traumatic event. However, the total payment amount may not
exceed $100,000.
(iv) Bone grafts for teeth implants alone do not meet the loss
standard for facial reconstruction from jaw surgery.
(17) Coma (8 or less on Glasgow Coma Scale) AND/OR Traumatic Brain
Injury resulting in inability to perform at least 2 activities of daily
living (ADL): (i) The amount payable at the 15th consecutive day of ADL
loss is $25,000.
(ii) The amount payable at the 30th consecutive day of ADL loss is
an additional $25,000.
(iii) The amount payable at the 60th consecutive day of ADL loss is
an additional $25,000.
(iv) The amount payable at the 90th consecutive day of ADL loss is
an additional $25,000.
(v) Duration of coma and inability to perform ADLs include date of
onset of coma or inability to perform ADLs and the first date on which
member is no longer in a coma or is able to perform ADLs.
(18) Hospitalization due to traumatic brain injury: (i) The amount
payable at the 15th consecutive day of hospitalization is $25,000.
(ii) Payment for hospitalization may only replace the first ADL
milestone in loss 17. Payment will be made for 15-day hospitalization,
coma, or the first ADL milestone, whichever occurs earlier. Once
payment has been made for the first payment milestone in loss 17 for
coma or ADL, there are no additional payments for subsequent 15-day
hospitalization due to the same traumatic injury. To receive an
additional ADL payment amount under loss 17 after payment for
hospitalization in the first payment milestone, the member must reach
the next payment milestones of 30, 60, or 90 consecutive days.
(iii) Duration of hospitalization includes the dates on which
member is transported from the injury site to a hospital as defined in
42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C.
1395i-3(a), admitted to the hospital or facility, transferred between a
hospital or facility, leaves the hospital or facility for a therapeutic
trip, and discharged from the hospital or facility.
(iv) In cases where a member is hospitalized for 15 consecutive
days for a diagnostic assessment for a mental illness and/or brain or
neurologic disorder, and the assessment determines the member has a
mental illness or brain or neurologic disorder, and not TBI, this loss
is not payable because the loss was due to illness or disease and is
excluded from payment. If a member is hospitalized for 15 consecutive
days for a diagnostic assessment to determine whether the member has
TBI and is diagnosed with TBI, TBI and PTSD, or PTSD and not TBI, the
loss is payable for $25,000. If a member is hospitalized for 15
consecutive days for a diagnostic assessment to determine whether the
member has PTSD and is diagnosed with TBI or TBI and PTSD, the loss is
payable for $25,000.
(19) Genitourinary losses: (i) Amputation of the glans penis or any
portion of the shaft of the penis above glans penis (i.e. closer to the
body) or damage to the glans penis or shaft of the penis that requires
reconstructive surgery-the amount payable for this loss is $50,000.
(ii) Permanent damage to the glans penis or shaft of the penis that
results in complete loss of the ability to perform sexual intercourse-
the amount payable for this loss is $50,000.
(iii) Amputation of or damage to a testicle that requires
testicular salvage, reconstructive surgery, or both-the amount payable
for this loss is $25,000.
(iv) Amputation of or damage to both testicles that requires
testicular salvage, reconstructive surgery, or both-the amount payable
for this loss is $50,000.
(v) Permanent damage to both testicles requiring hormonal
replacement therapy-the amount payable for this loss is $50,000.
(vi) Complete or partial amputation of the vulva, uterus, or
vaginal canal or damage to the vulva, uterus, or vaginal canal that
requires reconstructive surgery-the amount payable for this loss is
$50,000.
(vii) Permanent damage to the vulva or vaginal canal that results
in complete loss of the ability to perform sexual intercourse-the
amount payable for this loss is $50,000.
(viii) Amputation of an ovary or damage to an ovary that requires
ovarian salvage, reconstructive surgery, or both-the amount payable for
this loss is $25,000.
(ix) Amputation of both ovaries or damage to both ovaries that
requires ovarian salvage, reconstructive surgery, or both-the amount
payable for this loss is $50,000.
(x) Permanent damage to both ovaries requiring hormonal replacement
therapy-the amount payable for this loss is $50,000.
(xi) Permanent damage to the urethra, ureter(s), both kidneys,
bladder, or urethral sphincter muscle(s) that requires urinary
diversion and/or hemodialysis-the amount payable for this loss is
$50,000.
(xii) Losses due to genitourinary injuries may be combined with
each other, but the maximum benefit for genitourinary losses may not
exceed $50,000.
(xiii) Any genitourinary loss may be combined with other injuries
listed in Sec. 9.21(b)(1)-(18) and treated as one loss, provided that
at all losses are the result of a single traumatic event. However, the
total payment may not exceed $100,000.
(20) Traumatic injury, other than traumatic brain injury, resulting
in inability to perform at least 2 activities of daily living (ADL):
(i) The amount
[[Page 50989]]
payable at the 15th consecutive day of ADL loss is $25,000.
(ii) The amount payable at the 30th consecutive day of ADL loss is
an additional $25,000.
(iii) The amount payable at the 60th consecutive day of ADL loss is
an additional $25,000.
(iv) The amount payable at the 90th consecutive day of ADL loss is
an additional $25,000.
(v) Duration of inability to perform ADL includes the date of the
onset of inability to perform ADL and the first date on which member is
able to perform ADL.
(21) Hospitalization due to traumatic injury other than traumatic
brain injury: (i) The amount payable at 15th consecutive day of ADL
loss is $25,000.
(ii) Payment for hospitalization may only replace the first ADL
milestone in loss 20. Payment will be made for 15-day hospitalization
or the first ADL milestone, whichever occurs earlier. Once payment has
been made for the first payment milestone in loss 20, there are no
additional payments for subsequent 15-day hospitalization due to the
same traumatic injury. To receive an additional ADL payment amount
under loss 20 after payment for hospitalization in the first payment
milestone, the member must reach the next payment milestones of 60, 90,
or 120 consecutive days.
(iii) Duration of hospitalization includes the dates on which
member is transported from the injury site to a hospital as defined in
42 U.S.C. 1395x(e) or skilled nursing facility as defined in 42 U.S.C.
1395i-3(a), admitted to the hospital or facility, transferred between a
hospital or facility, leaves the hospital or facility for a therapeutic
trip, and discharged from the hospital or facility.
(Authority: 38 U.S.C. 501(a), 1980A)
[FR Doc. 2020-15981 Filed 8-18-20; 8:45 am]
BILLING CODE 8320-01-P
