[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Rules and Regulations]
[Pages 37040-37042]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12760]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 1 and 3
RIN 2900-AM09
Presumptions of Service Connection for Diseases Associated With
Service Involving Detention or Internment as a Prisoner of War
AGENCY: Department of Veterans Affairs.
ACTION: Affirmation of interim final rule as final rule.
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SUMMARY: This document affirms as final, without change, an interim
final rule that established presumptions of service connection for
atherosclerotic heart disease, hypertensive vascular disease, and
stroke in former prisoners of war; set forth guidelines to govern
future actions by the Department of Veterans Affairs (VA) to establish
presumptions of service connection for other diseases associated with
service involving detention or internment as a prisoner of war; and
revised VA's regulations to conform to statutory changes made by the
Veterans Benefits Act of 2003.
DATES: The interim final rule became effective on October 7, 2004.
FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant,
Compensation and Pension Service, Policy and Regulations Staff,
Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington,
DC 20420, (202) 273-7232.
SUPPLEMENTARY INFORMATION:
Background
In a document published in the Federal Register on October 7, 2004
(69 FR 60083), VA issued an interim final rule that set forth
guidelines to govern VA's determinations as to whether presumptions of
service connection are warranted for any disease based on a finding
that the disease may be associated with service involving detention or
internment as a prisoner of war (POW). The interim final rule also
established presumptions of service connection, pursuant to those
guidelines, for atherosclerotic heart disease, hypertensive vascular
disease, stroke, and their complications in former POWs. Finally, the
interim final rule revised VA's regulations to reflect statutory
changes made by section 201 of the Veterans Benefits Act of 2003,
Public Law No. 108-183, which revised 38 U.S.C. 1112(b) to remove, for
certain POW presumptive diseases, the previous requirement that the
former POW must have been detained or interned for at least 30 days in
order to qualify for the presumption. We solicited public comments on
the interim final rule and we received comments from one individual.
In the October 7, 2004, Federal Register notice, we explained that
VA generally employs evidentiary presumptions of service connection to
assist claimants who face unusually difficult evidentiary burdens in
demonstrating entitlement to VA
[[Page 37041]]
disability and death benefits, due to circumstances such as the
complexity of the medical issues involved in the claim or the lack of
contemporaneous medical records during periods of service. We explained
that Congress had previously established guidelines for determining
whether new presumptions of service connection are warranted for
disabilities associated with certain hazards of service, but had not
established any guidelines for determining whether presumptions were
warranted for diseases associated with service involving detention or
internment as a prisoner of war. Accordingly, the interim final rule
established such guidelines in 38 CFR 1.18, which, among other things,
states that the Secretary of Veterans Affairs may establish a
presumption of service connection for a disease when the Secretary
finds that there is ``limited/suggestive'' evidence that an increased
risk of such disease is associated with service involving detention or
internment as a POW and the association is biologically plausible.
Applying the new guidelines in Sec. 1.18, the Secretary determined
that presumptions of service connection were warranted for
atherosclerotic heart disease, hypertensive vascular disease, stroke,
and their complications based on medical evidence indicating that those
diseases are associated with service involving detention or internment
as a POW. Accordingly, the interim final rule revised 38 CFR 3.309(c)
to add those diseases to the list of diseases presumed to be associated
with such service.
Analysis of Public Comment
We received comments from an epidemiologist with experience in
veterans' health studies. Based on several medical studies, the
commenter states that veterans who have a long-term history of post-
traumatic stress disorder (PTSD) have a high risk of developing
cardiovascular disease and myocardial infarction, particularly if such
veterans suffer from other major psychiatric disorders or inflammatory
diseases in addition to PTSD. The commenter states that, because former
POWs have a relatively high rate of PTSD incurrence, they would
presumably have an increased risk of cardiovascular disease. As noted
above, the interim final rule established presumptions of service
connection for atherosclerotic heart disease, hypertensive vascular
disease, and their complications, including myocardial infarction, in
former POWs. This action was based on the Secretary's determination
that there was at least limited/suggestive evidence of an association
between cardiovascular disease and POW experience and that such an
association is biologically plausible. We noted that medical studies
had detected an increased risk of cardiovascular disease among former
POWs. We further noted that the evidence of an association between PTSD
and cardiovascular disease lends support to our conclusion that
cardiovascular disease is associated with POW experience. Accordingly,
we believe the commenter's statement that former POWs have a higher
risk of cardiovascular disease is consistent with our interim final
rule.
To the extent the comment might be viewed as suggesting that we
should use the term ``cardiovascular disease'' rather than the terms
``atherosclerotic heart disease'' and ``hypertensive vascular disease''
to describe the presumptive diseases, we make no change based on that
comment. As explained in our October 7, 2004, Federal Register notice,
the terms ``atherosclerotic heart disease'' and ``hypertensive vascular
disease'' are broad terms encompassing a wide variety of cardiovascular
diseases that may be described by more specific diagnoses in individual
cases. We have concluded that those terms are sufficiently broad to
cover the cardiovascular diseases for which there is evidence
suggestive of an association with POW experience and, moreover, for
which there is a biologically plausible relationship to circumstances
of POW experience such as malnutrition and stress. We do not have
sufficient evidence at this time to conclude that there is a
sufficiently demonstrated and biologically plausible association
between POW experience and certain other types of cardiovascular
disease such as those of viral or bacterial origin. Accordingly, we
believe that the term ``atherosclerotic heart disease'' most aptly
describes the range of heart diseases for which current medical
evidence supports a presumption of service connection, and that the
term ``hypertensive vascular disease'' most aptly describes the range
of peripheral vascular diseases for which current medical evidence
supports a presumption of service connection.
The commenter also states that veterans with chronic PTSD have been
found to have a significant risk of developing autoimmune diseases,
such as rheumatoid arthritis, psoriasis, insulin-dependent diabetes,
and hypothyroidism, and asserts that former POWs are therefore likely
to have a higher risk of autoimmune diseases. We make no change based
on this comment because it involves matters beyond the scope of the
interim final rule. Although the interim final rule established
presumptions of service connection for certain diseases, it should not
be construed to reflect a determination by VA concerning the strength
of any evidence that may exist for a possible association between other
diseases, such as autoimmune diseases, and POW experience. In order to
ensure the prompt delivery of benefits to the aging POW population, VA
necessarily focused on certain diseases for which it was aware of the
compelling evidence of an association with POW service. The issue of
whether presumptions may be established for other specific diseases is
beyond the scope of this final rule. However, the purpose of
establishing guidelines in new Sec. 1.18 was to provide a framework
for VA, on an ongoing basis, to evaluate scientific and medical
evidence pertaining to diseases possibly associated with POW experience
as well as policy issues pertaining to the need for particular
presumptions. Accordingly, evidence such as that cited by the commenter
with respect to autoimmune diseases may be the subject of subsequent
review and deliberation under the newly established guidelines.
We note further that existing VA regulations may provide a basis
for granting service connection to former POWs who incur autoimmune
diseases as a result of PTSD. Currently, 38 CFR 3.309(c) establishes a
presumption of service connection for anxiety disorders, including
PTSD, in former POWs. A separate regulation at 38 CFR 3.310 provides
that service connection may be granted for any disability arising as a
proximate result of a service-connected condition. Pursuant to those
regulations, a former POW who has PTSD may be able to establish service
connection for an autoimmune disease if medical evidence shows that the
veteran's disease proximately resulted from the veteran's PTSD.
Administrative Procedure Act
In the October 7, 2004, Federal Register notice, we determined that
there was a basis under the Administrative Procedure Act for issuing
the interim final rule with immediate effect. We invited and received
public comment on the interim final rule. This document merely affirms
the interim final rule as a final rule without change.
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 developing any rule that may result in
[[Page 37042]]
an expenditure by State, local, or 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 will have no such
effect on State, local, or tribal governments, or the private sector.
Paperwork Reduction Act
This document contains no new collections of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of
Management and Budget (OMB) previously has approved the VA application
forms governing claims for benefits based on service-connected
disability or death. Those forms specify the requirements for
submitting information and evidence in support of such claims and would
govern any claims for benefits based on the presumptions established by
this rule. By establishing presumptions of service connection, this
rule will relieve some claimants of the need to submit evidence
directly establishing that a cardiovascular disease was incurred in or
aggravated by service. The OMB approval numbers for the relevant
information collections are 2900-0001 (VA Form 21-526, Veterans'
Application for Compensation and/or Pension); 2900-0004 (VA Form 21-
534, Application for DIC, Death Compensation, and Accrued Benefits by a
Surviving Spouse or Child); and 2900-0005 (VA Form 21-535, Application
for DIC by Parent(s)).
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory action 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. The reason for this certification is that these
amendments will not directly affect any small entities. Only VA
beneficiaries and their survivors will be directly affected.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program numbers are
64.109, Veterans Compensation for Services-Connected Disability; and
64.110, Veterans Dependency and Indemnity Compensation for Service-
Connected Death.
List of Subjects
38 CFR Part 1
Administrative practice and procedure, Claims.
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Veterans, Vietnam.
Approved: May 10, 2005.
R. James Nicholson,
Secretary of Veterans Affairs.
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Accordingly, the interim final rule amending 38 CFR parts 1 and 3 which
was published at 69 FR 60083 is adopted as a final rule without change.
[FR Doc. 05-12760 Filed 6-27-05; 8:45 am]
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