April 20, 2001

VA Sponsors New Program for End-of-Life Care
WASHINGTON - Dying is never easy - not for an individual, not for a family, not for the medical staff who administer the care.  But the Department of Veterans Affairs (VA) is taking new steps to ease the process for everyone.

An initiative, called "VA Interprofessional Fellowship Program in Palliative Care," will develop health-care professionals with vision, knowledge and compassion to lead end-of-life care into the 21st century.  Although aimed at improving care for veterans, the program will affect how this care - known as "palliative care" in medical circles -- is provided throughout the country.

"As VA serves an increasingly higher percentage of older and chronically ill veterans, the need for end-of-life care similarly increases," said Dr. Stephanie H. Pincus, VA chief officer for Academic Affiliations, a program that educates more than 90,000 physicians, medical students, and associated health professionals each year.  "This interdisciplinary fellowship will jump-start palliative care as an important field in health care.  It will change the way physicians, social workers, nurses and other caregivers approach patients at an extremely difficult time in their lives."

Historically, VA has taken a leadership role in the promotion and development of hospice care and, more recently, in a national pain management initiative.  In 1998, VA's Office of Academic Affiliations addressed the need for clinicians trained in end-of-life care and was awarded a $985,000 grant by the Robert Wood Johnson Foundation to support further education.  On March 1, 2001, the palliative care fellowship program was announced and will involve up to six sites, with four one-year fellowships provided at each site.

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"The training changes the focus of health-care providers who are treating the terminally ill," said Pincus.  "In the past, doctors saw death as a failure, so they consequently focused on medical cures and preventing death at any cost.  We are training medical care staff now to concentrate on symptom management rather than disease management."

Pincus further explained that the new fellowship program has a large educational component.  Trained clinicians are expected to serve as leaders promoting development and research.  Selected training sites will be required to develop and implement an "Education Dissemination Project" to spread information beyond the training site through conferences, curricula for training programs, patient education materials and clinical demonstration projects.

And, of course, as resident doctors go out into the community, they take their training with them.  More than 130 VA facilities have affiliations with 107 medical schools and 1,200 other schools across the country.  More than half the physicians practicing in the United States have received part of their professional education in the VA health care system.

"This is an important step for health-care providers.  But what does this mean to the chronically ill veteran?" said Pincus.  "It means that he will be more comfortable.  It means he might not have to die in ICU but instead be able to remain in the secure surroundings of his home.  It means he will be treated by a caring, trained partnership of doctors, nurses, chaplains and social workers.  It means his family will be included in decision-making and care giving.

"There comes a time when all the modern medicine in the world can't cure the illness.  That's when treating the pain, communicating with compassion and providing support and counseling become paramount.  And that's what these fellowships are all about," said Pincus.

For more information about the program check VA's Web page at   HYPERLINK "http://www.va.gov/oaa/fellowships"   http://www.va.gov/oaa/fellowships .

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April 24, 2001

Director (00/21)                                                In Reply Refer To: 211A
All VA Regional Offices and Centers                     Fast Letter 01-30

SUBJ:  38 CFR §3.300, §3.310 Final Regulatory Amendment: Claims Based on the Effects of Tobacco Products

1.      Final regulatory amendments to 38 CFR §3.300 and §3.310 were published in the Federal Register, pages 7807-7809, on April 6, 2001.  These final amendments implement legislation stating that disability or death will not be service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service.  These regulatory amendments state that claims for direct or secondary service-connection based on tobacco use will be denied.  The effective date for these amendments is June 10, 1998.

2.      In VBA Letter 20-98-24 (dated September 24, 1998), you were instructed to maintain end product control, but not adjudicate, claims for secondary service connection, until these final regulatory amendments were published.  An example of such a claim is where service connection has been established for nicotine dependence based on a claim filed before June 10, 1998, and the veteran, subsequent to that date, claims emphysema as secondary to the nicotine dependence.

3.      Effective immediately, the stay on secondary tobacco claims is lifted.  Any cases stayed in accordance with VBA Letter 20-98-24 should be reviewed and adjudicated, consistent with these final regulatory amendments. Upon completion of the claim, take the appropriate end product.

4.      If you have questions concerning these regulatory amendments or this letter please contact the person listed on the Calendar page for this date - http://vbaw.vba.va.gov/bl/21/calendar/index.htm.

5.      This letter is rescinded effective May 1, 2003.

                                                        /s/

 F. McCourt, Acting  Director
Compensation & Pension Service

REGULATORY AMENDMENT

3-01-2

Regulations affected: 38 CFR 3.300 and 3.310

Effective Date of Regulations: June 10, 1998

Date Secretary Approved Regulations: February 5, 2001

Federal Register Citation: 66 FR 18195

        The purpose of the following comment on the changes included in this amendment of VA regulations is to inform all concerned why this change is being made.  This comment is not regulatory.

        This document amends VA adjudication regulations governing determinations of whether disability or death is service-connected.  These changes are necessary to implement a statutory amendment providing that a disability or death will not be service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service.

        Section 9014(a) of the ``Internal Revenue Service Restructuring and Reform Act of 1998,'' Public Law 105-206, amended section 8202 of the ``Transportation Equity Act for the 21st Century,'' Public Law 105-178, by adding section 1103 to title 38, United States Code. Subsection (a) of section 1103 provides that ``a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service.''

        Subsection (b) of section 1103 provides that subsection (a) does not preclude service connection for disability or death that is otherwise shown to have been incurred or aggravated during service or that becomes manifest to the requisite degree of disability during any applicable presumptive period specified in section 1112 or 1116 of title 38, United States Code. This document amends VA regulations by adding new Sec. 3.300 to title 38, Code of Federal Regulations, to implement the provisions of 38 U.S.C. 1103.

        Section 3.300(a) provides that, for claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. Section 3.300(a) also defines ``tobacco products'' to mean ``cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.''

        Section 3.300(b) provides that Sec. 3.300(a) does not prohibit service connection for a disability or death if it resulted from a disease or injury otherwise shown to have been incurred or aggravated during service, or that became manifest to the required degree of disability within a period that establishes eligibility for a presumption of service connection under 38 CFR 3.307, 3.309, 3.313, or 3.316, or that may be secondarily service-connected under Sec. 3.310(b). It defines "otherwise shown" as meaning "that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service."

        Sections 3.307 and 3.309 implement the statutory presumptions of 38 U.S.C. 1112 and 1116, which are specifically mentioned at 38 U.S.C. 1103(b). These sections of the statute govern the presumptions that the following diseases are service-connected: chronic and tropical diseases (section 1112(a)); diseases appearing in former prisoners of war (section 1112(b)); diseases appearing in radiation-exposed veterans (section 1112(c)); and diseases associated with exposure to certain herbicide agents (section 1116).

Sections 3.313 and 3.316 are regulatory, rather than statutory, presumptions issued pursuant to the general rulemaking authority of the Secretary of Veterans Affairs. 38 U.S.C. 501(a). They govern, respectively, service connection for non-Hodgkins' lymphoma developing subsequent to service in Vietnam and service connection for diseases developing subsequent to exposure to mustard gas and Lewisite. Also, Sec. 3.310(b), a regulatory presumption, governs secondary service connection of ischemic heart disease and other cardiovascular disease as the proximate result of certain service-connected amputations of the lower extremities. Title 38 U.S.C. 1103(b) explicitly provides that nothing in section 1103(a) shall be construed as precluding establishment of service connection if disability or death resulted from a disease or injury otherwise shown to have been incurred or aggravated during service or that appeared to the required degree within a statutory presumptive period.

In our view, 38 U.S.C. 1103 was not intended to affect a veteran's ability to establish service connection on the basis of any legal presumption, including regulatory presumptions authorized by 38 U.S.C. 501(a) as well as statutory presumptions. Section 1103(a) only precludes establishment of service connection for a disability or death ``on the basis that'' it resulted from injury or disease attributable to the veteran's use of tobacco products. We believe that section 1103(b) was enacted as a safeguard to assure that VA did not misinterpret section 1103(a) as barring otherwise valid claims for service connection. Based on our interpretation of section 1103, new Sec. 3.300(b) specifies that if disability or death can be service-connected under the regulatory presumptions of Sec. 3.310(b), 3.313, or 3.316, a claim will not be denied on the basis of Sec. 3.300(a).

New Sec. 3.300(c) provides that, for claims received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis of the veteran's use of tobacco products during service will not be service-connected. According to current Sec. 3.310(a), ``[d]isability which is proximately due to or the result of a service-connected disease or injury shall be service connected.'' Section 3.310(a) provides for service connection of disability not itself incurred or aggravated in service but nevertheless resulting from a disease or injury incurred or aggravated in service. Just as with directly service-connected disabilities, secondarily service-connected disabilities are the result of service-incurred or service-aggravated injury or disease, only they are somewhat more remotely related to such disease or injury. When a disability is proximately due to or the result of an injury or disease previously service-connected on the basis of the veteran's use of tobacco products during service, the secondary condition results from a disease or injury attributable to the use of tobacco products. Consequently, service connection of such a condition is barred by 38 U.S.C. 1103(a). New Sec. 3.300(c) therefore provides that secondary service connection may not be established under Sec. 3.310(a) in a claim received by VA after June 9, 1998, for a disability proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to a veteran's tobacco use during service. Under Sec. 3.300(c), a condition cannot be service-connected under Sec. 3.310(a) as secondary to a disease such as nicotine dependence, for example, that was previously service-connected solely on the basis that it resulted from the veteran's use of tobacco products during service. We are also amending Sec. 3.310(a) to make explicit that it is subject to the provisions of Sec. 3.300(c).

Section 8202 of Public Law 105-178, as amended (38 U.S.C. 1103 note), provides that 38 U.S.C. 1103 shall apply to claims received by VA after June 9, 1998.

For the reasons set forth in the preamble, 38 CFR part 3 is amended as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation

        1.  The authority citation for part 3, subpart A continues to read as follows:
        AUTHORITY:  38 U.S.C. 501(a), unless otherwise noted.

        2.  Section 3.300 is added immediately under the undesignated center heading "Ratings and Evaluations; Basic Entitlement Considerations" to read as follows:

§ 3.300  Claims based on the effects of tobacco products.
        (a)  For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service.  For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.

        (b)  The provisions of paragraph (a) of this section do not prohibit service connection if:
        (1)  The disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service.  For purposes of this section, "otherwise shown" means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service; or

        (2)  The disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under §§ 3.307, 3.309, 3.313, or 3.316; or

        (3)  Secondary service connection is established for ischemic heart disease or other cardiovascular disease under § 3.310(b).

        (c)  For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under

§ 3.310(a).

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

        3.  In § 3.310, paragraph (a) is amended by removing "Disability" and adding, in its place, "Except as provided in § 3.300(c), disability".

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April 24, 2001

Director (00/21)        In Reply Refer To: 211A
All VA Regional Offices and Centers     Fast Letter 01-29
   
SUBJ:  Proposed Regulatory Amendment: VA Duty to Assist

1.  A proposed regulatory amendment to 38 CFR §3.157 and 3.156 were published in the Federal Register, pages 17834-17840, on April 4, 2001.  The proposed amendments would implement the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. 106-475.  The intended effect of these proposed regulatory changes is to establish clear guidelines regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a finally denied claim.

2.  Field station comments, while not mandatory, are invited.  Information on submitting comments is included in the Federal Register document.  Because this proposed revision is subject to further revision based on comments received, do not in any way use or refer to this proposed rule at this time.  It is provided to you for informational purposes only and to afford you the opportunity to comment.

3.  If you have questions concerning the proposed amendment or this letter
please contact the person listed on the Calendar page for this date - http://vbaw.vba.va.gov/bl/21/calendar/index.htm.

4.  This letter is rescinded effective May 1, 2002.

        /s/
        John F. McCourt, Acting Director
        Compensation & Pension Service