[Federal Register: December 18, 2006 (Volume 71, Number 242)]
[Rules and Regulations]
[Page 75669-75672]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de06-8]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AM47
Extension of the Presumptive Period for Compensation for Gulf War
Veterans
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing this
interim final rule to amend its adjudication regulations regarding
compensation for
[[Page 75670]]
disabilities resulting from undiagnosed illnesses suffered by veterans
who served in the Persian Gulf War. This amendment is necessary to
extend the presumptive period for qualifying chronic disabilities
resulting from undiagnosed illnesses that must become manifest to a
compensable degree in order that entitlement for compensation be
established. The intended effect of this amendment is to provide
consistency in VA adjudication policy and preserve certain rights
afforded to Persian Gulf War veterans and ensure fairness for current
and future Persian Gulf War veterans.
DATES: Effective Date: This interim final rule is effective December
18, 2006. Comments must be received by VA on or before February 16,
2007.
ADDRESSES: Written comments may be submitted through http://www.Regulations.gov
; by mail or hand-delivery to Director, Regulations
Management (00REG), Department of Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026.
Comments should indicate that they are submitted in response to ``RIN
2900-AM47--Extension of the Presumptive Period for Compensation for
Gulf War Veterans.'' All comments received will be available for public
inspection in the Office of Regulation Policy and Management, Room
1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday
(except holidays). Please call (202) 273-9515 for an appointment. In
addition, during the comment period, comments are available online
through the Federal Docket Management System (FDMS).
FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7210.
SUPPLEMENTARY INFORMATION:
I. Establishing a Presumptive Period
In response to the needs and concerns of veterans of the Persian
Gulf War (Gulf War), Congress enacted the Persian Gulf War Veterans'
Benefits Act, title I of the Veterans' Benefits Improvements Act of
1994, Public Law 103-446, which was codified in relevant part in title
38, United States Code, section 1117. This law provided authority to
the Secretary of Veterans Affairs (Secretary) to compensate Gulf War
veterans with a chronic disability resulting from an undiagnosed
illness that became manifest either during service on active duty in
the Southwest Asia theater of operations during the Persian Gulf War or
to a 10 percent degree or more during a presumptive period determined
by the Secretary.
Public Law 103-446 directed the Secretary to prescribe by
regulation the period of time (presumptive period) following service in
the Southwest Asia theater of operations determined to be appropriate
for the manifestation of an illness warranting payment of compensation.
It further directed that the Secretary's determination of a presumptive
period be made only following a review of any credible medical or
scientific evidence and the historical treatment afforded disabilities
for which manifestation periods have been established and taking into
account other pertinent circumstances regarding the experiences of
veterans of the Persian Gulf War.
II. Background
To implement 38 U.S.C. 1117, VA published a final rule adding a new
Sec. 3.317 to title 38, Code of Federal Regulations. This regulation
established the framework necessary for the Secretary to pay
compensation under the authority granted by the Persian Gulf War
Veterans' Benefits Act. See 60 FR 6660, February 3, 1995. As part of
that rulemaking, VA established a 2-year, post-Gulf War service
presumptive period based primarily on the historical treatment of
disabilities for which manifestation periods have been established and
pertinent facts known regarding service in the Southwest Asia theater
of operations during the Persian Gulf War. VA determined that there was
little or no scientific or medical evidence, at that time, useful in
determining an appropriate presumptive period for undiagnosed
illnesses.
Due to the continuing lack of medical and scientific evidence about
the nature and cause of the illnesses suffered by Gulf War veterans and
consensus concerning the inadequacy of the 2-year presumptive period
for undiagnosed illnesses, the Secretary determined the presumptive
period should be extended to include illnesses manifest to a 10 percent
degree not later than December 31, 2001. On April 29, 1997, VA
published a final rule amending 38 CFR 3.317 to implement this
decision. See 62 FR 23138.
In 1998, Congress enacted Public Law 105-277 requiring VA to
collaborate with the National Academy of Sciences (NAS) to review and
evaluate available scientific evidence regarding associations between
illnesses and exposure to hazards of Gulf War service. Section
1603(i)(3) of Public Law 105-277 required NAS to issue reports, which
are produced by the Institute of Medicine's (IOM) Committee on Gulf War
and Health, every 2 years to review scientific research on Gulf War
toxic exposures.
In 2001, the Secretary extended the presumptive period for
undiagnosed illnesses suffered by Persian Gulf War veterans from
December 31, 2001, to December 31, 2006, based upon ongoing research
that would require review by the Secretary. VA published an interim
final rule amending 38 CFR 3.317 to extend the presumptive period to
December 31, 2006 (an additional 5 years). See 66 FR 56614, November 9,
2001.
In December 2001, section 202(a) of Public Law 107-103 amended 38
U.S.C. 1117 by revising the term ``chronic disability'' to include the
following (or any combination of the following): (a) An undiagnosed
illness; (b) a medically unexplained chronic multisymptom illness (such
as chronic fatigue syndrome, fibromyalgia, and irritable bowel
syndrome) that is defined by a cluster of signs or symptoms; or (c) any
diagnosed illness that the Secretary determines warrants a presumption
of service connection. The revised term, ``qualifying chronic
disability,'' has broadened the scope of those health outcomes the
Secretary may include under the presumption of service connection.
Under 38 U.S.C. 1117, a qualifying chronic disability must still occur
during service on active duty in the Armed Forces in the Southwest Asia
theater of operations during the Persian Gulf War, or to a degree of 10
percent or more during the presumptive period prescribed following such
service. Accordingly, VA amended 38 CFR 3.317 to reflect these changes.
See 68 FR 34539, June 10, 2003.
III. Current Research
The NAS' Committee on Gulf War and Health has several meetings
planned during 2006 in support of current research projects. One such
research project is Physiologic, Psychologic, and Psychosocial Effects
of Deployment Related Stress. The objective of this project is to
comprehensively review, evaluate, and summarize the scientific and
medical literature for peer review regarding the association between
stress and long-term adverse health effects in the Gulf War.
The NAS study is not limited to veterans of the Persian Gulf War
deployments of the early 1990s but also includes veterans of current
conflicts, such as Operation Iraqi Freedom, occurring in part, within
the Southwest Asia theater of operations.
[[Page 75671]]
In addition to the above-referenced report, we anticipate that the
NAS will prepare other reports relevant to Gulf War veterans' health,
including reports required by Public Law 105-277 to be prepared every 2
years through October 1, 2010. These research projects have the
potential of bringing much needed information to the Secretary
regarding the establishment of a new, more definitive, presumptive
period for Gulf War veterans with qualifying chronic disabilities.
These NAS research projects have begun and are currently ongoing.
Presently, VA continues to receive claims for qualifying chronic
disabilities. In 2005 for example, VA received 2,241 new claims with
diagnostic codes that would be affected by this final rule, and we
continue to receive such claims during 2006.
Conclusion
Currently, military operations in the Southwest Asia theater of
operations continue, including Operation Iraqi Freedom. No end date for
the Gulf War has been established by Congress or the President. See 38
U.S.C. 101(33). Because scientific uncertainty remains as to the cause
of illnesses suffered by Persian Gulf War veterans and current IOM
research studies are incomplete, limiting entitlement to benefits
payable under 38 U.S.C. 1117 due to the expiration of the presumptive
period in 38 CFR 3.317 is premature. If extension of the current
presumptive period is not implemented, servicemembers conducting
military operations in the Southwest Asia theater of operations after
December 31, 2006, could be substantially disadvantaged compared to
servicemembers who previously served in the same theater of operations.
Therefore, VA is extending the presumptive period in 38 CFR 3.317
for qualifying chronic disabilities that become manifest to a degree of
10 percent or more through December 31, 2011 (a period of 5 years), to
ensure those benefits established by Congress are fairly administered.
Administrative Procedure Act
The Secretary of Veterans Affairs finds that there is good cause
under the provisions of 5 U.S.C. 553(b)(3)(B), to publish this rule
without prior opportunity for public comment. In light of the fast
approaching expiration date of the current presumptive period of
December 31, 2006, the Secretary finds delay for the purpose of
soliciting public comment impracticable, and because expiration of this
rule would prohibit VA's delivery of important benefits to some
veterans of the Gulf War and Operation Iraqi Freedom, further delay
would be contrary to public interest. For the foregoing reasons, the
Secretary of Veterans Affairs is issuing this rule as an interim final
rule. The Secretary will consider and address comments that are
received on or before February 16, 2007.
Paperwork Reduction Act
This document contains no provisions constituting a new collection
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. 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
sections 603 and 604.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget (OMB) unless OMB waives such
review, as any regulatory action that is likely to result in a rule
that may: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) Create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) Materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
Raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. VA has examined the economic, legal, and policy implications of
this Interim final rule and has concluded that it is a significant
regulatory action under Executive Order 12866.
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 given year. This rule would have no such effect on
State, local, and tribal governments, or the private sector.
Catalog of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance program numbers and
titles are 64.100, Automobiles and Adaptive Equipment for Certain
Disabled Veterans and Members of the Armed Forces; 64.101, Burial
Expenses Allowance for Veterans; 64.102, Compensation for Service-
Connected Deaths for Veterans' Dependents; 64.103, Life Insurance
for Veterans; 64.104, Pension for Non-Service-Connected Disability
for Veterans; 64.105, Pension to Veterans Surviving Spouses, and
Children; 64.106, Specially Adapted Housing for Disabled Veterans;
64.109, Veterans Compensation for Service-Connected Disability;
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death; 64.114, Veterans Housing-Guaranteed and Insured
Loans; 64.115, Veterans Information and Assistance;
64.116,Vocational Rehabilitation for Disabled Veterans; 64.117,
Survivors and Dependents Educational Assistance; 64.118, Veterans
Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans
Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans'
Educational Assistance; 64.124, All-Volunteer Force Educational
Assistance; 64.125, Vocational and Educational Counseling for
Servicemembers and Veterans; 64.126, Native American Veteran Direct
Loan Program; 64.127, Monthly Allowance for Children of Vietnam
Veterans Born with Spina Bifida; and 64.128, Vocational Training and
Rehabilitation for Vietnam Veterans' Children with Spina Bifida or
Other Covered Birth Defects.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Health care,
Individuals with disabilities, Pensions, Veterans, Vietnam.
Approved: September 26, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
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For the reasons set forth in the preamble, 38 CFR part 3 is amended as
follows:
[[Page 75672]]
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
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1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Sec. 3.317 [Amended]
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2. In Sec. 3.317, paragraph (a)(1)(i) is amended by removing
``December 31, 2006'' and adding, in its place, ``December 31, 2011''.
[FR Doc. E6-21531 Filed 12-15-06; 8:45 am]
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