Additional Disability or Death Due to Hospital Care, Medical or Surgical Treatment, Examination, or Training and Rehabilitation Services

In a document published as a final rule in the Federal Register on August 24, 1998 (63 FR 45004), we amended our adjudication regulations concerning awards of compensation or dependency and indemnity compensation for additional disability or death due to VA hospital care, medical or surgical treatment, examination, or training and rehabilitation services. The amendments provided that benefits are payable for additional disability or death caused by VA hospital care, medical or surgical treatment, or examination only if VA fault or ``an event not reasonably foreseeable'' proximately caused the disability or death. Further, the amendments provided that benefits are also payable for additional disability or death proximately caused by VA's provision of training and rehabilitation services. We established the amendments without prior notice and comment based on our conclusion that they consisted of only restatements and interpretations of statutory provisions. Judicial review has been sought on the basis that the rulemaking establishing the final rule constituted substantive rulemaking that required an opportunity for prior notice and comment. We believe that our action was legally correct. Even so, as provided in a settlement agreement, by this document we are rescinding the final rule of August 24. This moots the pending litigation. The rescinded rule will be considered to have no force or effect in any claim decided on or after August 24, 1998. Further, we intend to propose provisions similar to those in the rescinded rule in a document to be published in the Proposed Rules section of a future issue of the Federal Register. This will provide interested individuals an opportunity to comment on the proposed amendments.