[Federal Register: October 16, 2003 (Volume 68, Number 200)]
[Rules and Regulations]
[Page 59540-59542]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16oc03-8]
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DEPARTMENT OF VETERAN AFFAIRS
38 CFR Part 3
RIN 2900-AL55
Disease Associated With Exposure to Certain Herbicide Agents:
Chronic Lymphocytic Leukemia
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning presumptive service connection for
certain diseases for which there is no record during service. This
amendment is necessary to implement the decision of the Secretary of
Veterans Affairs that there is a positive association between exposure
to herbicides used in the Republic of Vietnam during the Vietnam era
and the subsequent development of chronic lymphocytic leukemia (CLL).
The effect of this amendment is to establish presumptive service
connection for that condition based on herbicide exposure.
DATES: Effective Date: October 16, 2003.
FOR FURTHER INFORMATION CONTACT: Cheryl Konieczny, Regulations Staff,
Compensation and Pension Service, Veterans Benefits Administration, 810
Vermont Avenue, NW., Washington, DC 20420, telephone (202) 273-6779.
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on March 26, 2003 (68 FR 14567-14570), VA proposed to amend
its adjudication regulations to provide for a presumption of service
connection for CLL based on herbicide exposure. VA provided a 60-day
comment period which ended on May 27, 2003. We received a written
comment from Vietnam Veterans of America (VVA) and a joint written
comment from two individuals.
Comments Supporting the Proposed Rule
The joint comment from two individuals expressed support for the
proposed rule.
Outreach Mechanisms
One commenter urged that the final rule specifically state that VA
will develop and implement outreach mechanisms by which attempts will
be made to contact all in-country Vietnam veterans who are eligible for
this benefit.
VA has already initiated a number of outreach activities. In
January 2003, VA issued a news release concerning the Secretary's
decision regarding CLL. This news release has also been distributed at
health fairs, health care conferences, and on the National Mall in
conjunction with Public Service Recognition Week. An article conveying
this information can currently be found on VA's Web site. The lead
article of the July issue of the Agent Orange Review, which will be
sent to hundreds of thousands of Vietnam veterans, is about the
Secretary's decision regarding CLL. Further, outreach efforts are
procedural in nature, and are outside the scope of this rulemaking;
therefore, no change is made based on this comment.
Establish a Retroactive Effective Date
The same commenter urged that the final rule state that
compensation for CLL will be retroactive for those eligible in-country
Vietnam veterans who had previously applied for benefits based on CLL
and were denied. We will make no change based on this comment because
VA does not have authority to award such retroactive benefits. As
explained below, existing statutes make clear that VA may not award
retroactive benefits based on this final rule for any period before the
date this final rule is published in the Federal Register. Those
statutes prohibit VA from granting benefits retroactive to the date of
a previously denied claim. No statute or judicial decision authorizes
VA to ignore those statutory requirements for purposes of this final
rule.
Title 38 U.S.C. 1116(c)(2) clearly and unambiguously requires that
regulations promulgated as a result of a decision of the Secretary of
Veterans Affairs that a positive association exists between exposure to
herbicides and a specified condition or disease ``shall be effective on
the date of issuance.'' The effective date established by this rule is
in accordance with 38 U.S.C. 1116(c)(2). Under 38 U.S.C. 5110(g), when
benefits are awarded based on a new regulation, the effective date of
the award may not be earlier than the effective date of the regulation.
In view of 38 U.S.C. 1116(c)(2) and 5110(g), VA does not have authority
to provide in this rule for assignment of an effective date earlier
than the date on which this rule is issued.
We note that a series of orders from the United States District
Court for the Northern District of California in the class-action
litigation in Nehmer v. U.S. Veterans' Administration requires VA to
pay retroactive benefits for certain diseases associated with herbicide
exposure, in certain circumstances, in a manner that would otherwise be
prohibited by 38 U.S.C. 1116(c)(2) and 5110(g). We conclude, however,
that those orders do not apply to benefits based on a disease for which
the Secretary of Veterans Affairs establishes a presumption of service
connection after September 30, 2002.
The Nehmer court orders rely upon a May 1991 Final Stipulation and
Order between the parties to that litigation. The 1991 stipulation and
order required VA to accord retroactive effect to presumptions of
service connection established by VA pursuant to the Agent Orange Act
of 1991, Public Law 102-4. The Agent Orange Act of 1991, Public Law
102-4, established a sunset date of September 30, 2002, for the
Secretary to establish such presumptions. Accordingly, the Nehmer
stipulation and order applies only to awards based on presumptions
established within the
[[Page 59541]]
time frame specified in the Agent Orange Act of 1991, Public Law 102-4.
The Agent Orange Act of 1991, Public Law 102-4, added section 1116
to title 38, United States Code. Section 1116(b) authorized the
Secretary of Veterans Affairs to issue regulatory presumptions of
service connection for diseases associated with herbicide exposure.
Section 1116(e), as added by the Act, stated that section 1116(b) would
cease to be effective 10 years after the first day of the fiscal year
in which the NAS transmitted its first report to VA. The first NAS
report was transmitted in June 1993, during the fiscal year that began
on October 1, 1992. Accordingly, under the Act, VA's authority to issue
regulatory presumptions as specified in section 1116(b) would have
expired on September 30, 2002.
In December 2001, Congress enacted the Veterans Education and
Benefits Expansion Act of 2001 (Benefits Expansion Act), Public Law
107-103, section 201(d) of which extended VA's authority under section
1116(b) through September 30, 2015. Pursuant to this statute, VA may
issue new regulations between October 1, 2002, and September 30, 2015,
establishing additional presumptions of service connection for diseases
that are found to be associated with herbicide exposure based on
evidence contained in future NAS reports. Because presumptions
established pursuant to the authority of the Benefits Expansion Act,
Public Law 107-103 are beyond the scope of the Nehmer stipulation and
order, the effective-date provisions of the stipulation and order would
not apply to benefit awards based on those presumptions.
The United States District Court for the Northern District of
California and the United States Court of Appeals for the Ninth Circuit
stated that the Nehmer stipulation and order applies only to awards
based on presumptions issued within the time period established by the
Agent Orange Act of 1991, Public Law 102-4. The district court noted
that the retroactive payment provisions of the stipulation and order
are ``expressly tied'' to the Agent Orange Act of 1991, Public Law 102-
4, and that ``the Stip. & Order is not therefore boundless.'' Nehmer v.
United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D.
Cal. Dec. 12, 2000). The Ninth Circuit stated that ``the district court
was careful to prescribe temporal limits on the effect of the consent
decree, with which we agree.'' Nehmer v. Veterans' Administration, 284
F.3d 1158, 1162 n.3 (9th Cir. 2002).
In its December 12, 2000, order, the district court held that the
1991 stipulation and order must be interpreted in accordance with
general principles of contract law. It is well established that, unless
the parties provide otherwise, a contract is presumed to incorporate
the law that existed at the time the contract was made. See Norfolk &
Western Ry. Co. v. American Train Dispatchers' Ass'n, 499 U.S. 117,
129-30 (1991). The terms of a contract ``do not change with the
enactment of subsequent legislation, absent a specific contractual
provision providing for such a change.'' Winstar Corp. v. United
States, 64 F.3d 1531, 1547 (Fed. Cir. 1995), aff'd, 518 U.S. 839
(1996). A subsequent change in the law cannot retrospectively alter the
terms of the agreement. See Florida East Coast Ry. Co. v. CSX
Transportation, Inc., 42 F.3d 1125, 1129-30 (7th Cir. 1994).
Accordingly, the enactment of the Benefits Expansion Act of 2001 cannot
expand the Government's authority under the May 1991 stipulation and
order.
VA is required to give effect to the clear statutory requirements
in 38 U.S.C. 1116(c)(2) and 5110(g), in the absence of authority to the
contrary. To the extent the Nehmer court orders require action
seemingly at odds with those statutes, we believe they are most
reasonably viewed as creating a non-statutory exception to the
requirements of 38 U.S.C. 1116(c)(2) and 5110(g). We believe it would
be inappropriate, however, to disregard the clear requirements of
section 1116(c)(2) and 5110(g) in cases that are not within the scope
of the Nehmer court orders. The United States Court of Appeals for the
Federal Circuit and the United States Court of Appeals for Veterans
Claims have held that 38 U.S.C. 5110(g) governs the effective date of
awards made pursuant to regulatory presumptions of service connection
for diseases associated with herbicide exposure, at least in cases that
are not clearly within the scope of the Nehmer court orders. See
Williams v. Principi, 15 Vet. App. 189 (2001) (en banc); aff'd, 310
F.3d 1374 (Fed. Cir. 2002). Accordingly, the district court orders in
the Nehmer case do not permit VA to ignore the clear requirements of 38
U.S.C. 1116(c)(2) and 5110(g) as they apply to this final rule or to
grant retroactive benefits in a manner prohibited by those statutes. We
therefore make no change based on this comment.
Eligibility of Widows
The commenter urged that the final rule state that widows of in-
country Vietnam veterans who died as a result of CLL are eligible for
dependency and indemnity compensation (DIC). This rule is not intended
to define the criteria governing eligibility for DIC or any other
benefit. Several existing statutes and regulations already provide that
veterans and their survivors are entitled to benefits for disability or
death due to a service-connected disease or injury. This rule would
establish a presumption that CLL is service connected in veterans who
were exposed to certain herbicide agents used in Vietnam and who
subsequently developed that disease. That presumption will assist
claimants in establishing entitlement to specific benefits under the
statutes and regulations authorizing such benefits, and will apply
whether the claimant is a veteran seeking compensation or a survivor
seeking service-connected death benefits. We therefore make no change
based on this comment, because the suggested change is beyond the scope
of this rule and is unnecessary.
Extend Eligibility to Those Who Served on Naval Vessels
The commenter urged that we extend eligibility to service
connection for CLL to all Vietnam veterans who served within the
geographical boundaries of the Republic of Vietnam and those who served
on naval vessels within the territorial waters of the Republic of
Vietnam. As revised by this final rule, 38 CFR 3.309(e) will expressly
provide that CLL will be presumed service connected in any veteran who
was exposed to certain herbicide agents during service. Veterans who
served in the Republic of Vietnam between January 9, 1962, and May 7,
1975, are presumed to have been exposed to such herbicide agents.
Veterans who served only in other locations or at other times,
including those who served on naval vessels in the territorial waters
of Vietnam but never set foot within the Republic of Vietnam, would
need to establish that they were exposed to herbicide agents during
service.
Title 38 U.S.C. 1116 requires that a veteran have served ``in the
Republic of Vietnam'' to be eligible for the presumption of exposure to
herbicides. 38 CFR 3.307(a)(6)(iii) provides that ``Service in the
Republic of Vietnam'' includes service in offshore waters or other
locations only if the conditions of service involved duty or visitation
within the Republic of Vietnam. In interpreting similar language in 38
U.S.C. 101(29)(A), VA's General Counsel has concluded that service in a
deep-water vessel in waters offshore the Republic of Vietnam does not
constitute service ``in the Republic of Vietnam.'' (See VAOPGCPREC 27-
97.) VA's regulatory definition of ``Service in the Republic of
Vietnam'' predates the
[[Page 59542]]
enactment of section 1116(a)(3) (see former 38 CFR 3.311a(a)(1)(1990)),
and we find no basis to conclude that Congress intended to broaden that
definition. The commenter cited no authority for concluding that
individuals who served in the waters offshore of the Republic of
Vietnam were subject to the same risk of herbicide exposure as those
who served within the geographic boundaries of the Republic of Vietnam,
or for concluding that offshore service is within the meaning of the
statutory phrase ``Service in the Republic of Vietnam.'' We therefore
make no change based on this comment.
CLL and Non-Hodgkin's Lymphoma
The commenter stated that because of the common etiology and shared
symptoms between CLL and non-Hodgkin's lymphoma (NHL), all in-country
Vietnam veterans who are eligible for compensation because of NHL
should also be eligible for CLL diagnoses, treatment plans, and
compensation.
We disagree. While CLL and NHL may share certain traits and
symptomatology, they are, nonetheless, distinct diagnostic entities,
both of which VA presumes to result from herbicide exposure. We believe
the responsibilities of diagnosing disease and establishing treatment
plans must rest with health care professionals. Further, it would be
improper and contrary to current statutes to provide for automatic
compensation for a disease that the claimant may not even have. Whether
a veteran has one of these conditions, or which one, must be
established by competent medical evidence. Therefore, no changes have
been made based on this comment.
Based on the rationale set forth in the proposed rule document and
this document, we are adopting the provisions of the proposed rule as a
final rule without change.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any given year. This rule would have no such
effect on State, local, or tribal governments, or the private sector.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Executive Order 12866
This final rule has been reviewed by the Office of Management and
Budget under Executive Order 12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory amendment will
not have 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 reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of 603 and 604.
Catalog of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance program numbers are
64.109 and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: August 27, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.
0
For the reasons set forth in the preamble, 38 CFR part 3 is amended as
follows:
PART 3--ADJUDICATION
Subpart A `` Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. In Sec. 3.309, paragraph (e), the listing of diseases is amended by
adding ``Chronic lymphocytic leukemia'' between ``Hodgkin's disease''
and ``Multiple myeloma'' to read as follows:
Sec. 3.309 Disease subject to presumptive service connection.
* * * * *
(e) * * *
Chronic lymphocytic leukemia
* * * * *
[FR Doc. 03-26252 Filed 10-15-03; 8:45 am]
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