[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63225-63228]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25353]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AO09
Extension of Statutory Period for Compensation for Certain
Disabilities Due to Undiagnosed Illnesses and Medically Unexplained
Chronic Multi-Symptom Illnesses
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing this final
rule to affirm an amendment to its adjudication regulation regarding
compensation for disabilities experienced by veterans who served in the
Southwest Asia Theater of Operations during the Persian Gulf War. This
amendment is necessary to extend the period during which disabilities
associated with undiagnosed illnesses and medically unexplained chronic
multi-symptom illnesses must become manifest in order for a veteran to
be eligible for compensation. Additionally, in this final rule, VA will
correct the adjudication section title that was amended and published
in the Federal Register on September 29, 2010, but inadvertently
changed to the original title.
DATES: Effective Date: This rule is effective October 16, 2012.
Applicability Date: The provisions of this final rule shall apply
to all applications for benefits that are or have been received by VA
on or after December 29, 2011, or that were pending before VA, the
United States Court of Appeals for Veterans Claims, or the United
States Court of Appeals for the Federal Circuit on December 29, 2011.
[[Page 63226]]
FOR FURTHER INFORMATION CONTACT: Nancy Copeland, Consultant,
Regulations Staff (211D), Compensation Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420, (202) 461-9685. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On December 29, 2011, VA published in the
Federal Register (76 FR 81834) an interim final rule amending its
adjudication regulation regarding compensation for disabilities
suffered by veterans who served in the Southwest Asia Theater of
Operations during the Persian Gulf War. In order to ensure that
benefits established by Congress are fairly administered, VA extended
the evaluation period in which disabilities associated with undiagnosed
illnesses and chronic multi-symptom illnesses must become manifest in
order for a veteran to be eligible for compensation. Accordingly, VA
removed the date, ``December 31, 2011'' from 38 CFR 3.317(a)(1)(i) and
added, in its place, December 31, 2016.
Interested persons were invited to submit written comments on or
before February 27, 2012; VA received 169 comments in response to the
interim final rule. VA received comments from veterans service
organizations and advocacy groups. VA also received comments and
material from blogs and surveys established for Gulf War veterans who
were deployed in the Southwest Asia Theater of Operations and also for
those non-deployed during the Gulf War era. Lastly, VA received
comments from military service members and their families.
General Comments
VA received general comments that were not associated with
extension of the time frame for VA to continue to evaluate undiagnosed
illnesses and medically unexplained chronic multi-symptom illnesses in
Persian Gulf War veterans. Some commenters asserted that undiagnosed
illness is not fully understood even though 20 years have lapsed since
the beginning of the Persian Gulf War. Others asserted that VA should
revise the definition of Southwest Asia Theater of Operations or revise
the type of service required and add medically unexplained chronic
multi-symptom illnesses associated with different time periods. One
commenter stated that VA examinations should be provided only by VA
examiners and not contracted out. One commenter supported a minimum 30-
percent rating for all Persian Gulf War veterans suffering from an
undiagnosed illness. These comments are beyond the scope of this
rulemaking. Therefore, VA makes no changes based on these comments.
Claims Specific Comments
VA received numerous comments from veterans regarding their
individual claims for veterans benefits and comments from family
members and friends in support of Gulf War veterans. These comments are
beyond the scope of this rulemaking. Therefore, VA makes no changes
based on these comments.
Post-9/11 [September 11, 2001] Veterans
Several commenters asserted the need for VA to consider those
suffering from undiagnosed and medically unexplained chronic multi-
symptom illnesses associated with the wars in Iraq, Afghanistan, and
other Post-9/11 locations. As required by 38 U.S.C. 101(33), VA
acknowledges that the Persian Gulf War period continues until an end
date is established by Congress or Presidential proclamation. Section
1117(f) of the same title provides that the term ```Persian Gulf
veteran' means a veteran who served on active duty in the Armed Forces
in the Southwest Asia theater of operations during the Persian Gulf
War,'' and, as reflected in 38 CFR 3.317(e)(2), ``[t]he Southwest Asia
theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral
zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab
Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf,
the Arabian Sea, the Red Sea, and the airspace above these locations.''
As such, VA's regulatory provisions already pertain to Post-9/11
veterans who previously served or continue to serve in these theaters
of operation. Further, any suggestions to expand the types of service
to which the statute and regulation apply are beyond the scope of this
rulemaking. Therefore, we make no changes based on these comments.
Immediate Extension of the Effective Date
VA received comments expressing gratitude for the extension to
December 31, 2016, and asserting that VA should extend the date
immediately. One such commenter expressed the belief that ``this
amendment is reasonable and effective.'' With regard to the immediate
extension of the expiration date, the interim final rule was effective
immediately upon its date of publication, December 29, 2011, and
extended the manifestation period of the regulation through December
31, 2016. This final rule merely keeps that regulation in effect.
Accordingly, this final rule is effective upon publication.
Elimination of the Expiration Date
The majority of commenters, some of whom thanked VA for the
extension to December 31, 2016, asserted that VA should completely
eliminate the expiration date. Some provided statements such as
``undiagnosed illnesses remain difficult to identify or treat'';
``veterans may not realize they need help until after the five-year
extension''; the presumption for Amyotrophic Lateral Sclerosis has no
end date; diseases affecting Vietnam veterans are still emerging 50
years later with no end date for filing, and some Gulf War veterans are
more ill than Vietnam veterans; ``undiagnosed and chronic multi-symptom
illnesses cause life-long disabilities'' warranting no time
restrictions on a veteran to seek presumptive service connection;
``medical conditions may take decades to manifest,'' and the Persian
Gulf War period continues under 38 U.S.C. 101(33); and the regulations
should cover veterans of the interim war period between the Gulf War
and the Iraq War and those ``on the ground as late as December 2011.''
We will make no change based on these comments. Section 102(7) of
the Persian Gulf War Veterans' Benefits Act states Congress' finding
that further research must be undertaken to determine the causes of
Gulf War veterans illnesses and that ``pending the outcome of such
research, veterans who are seriously ill as the result of such
illnesses should be given the benefit of the doubt and be provided
compensation to offset the impairment in earning capacities they may be
experiencing.'' Congress contemplated an ongoing process for
investigating the nature and causes of Gulf War veterans' illnesses.
The statutory scheme reflects the hope that further research may
eventually diminish the need for the presumptions in section 1117.
Accordingly, we believe that extending the presumptive period for a
significant, but not indefinite, period to permit further investigation
is consistent with the goals of this statutory scheme.
In section 1117(b), Congress provided the Secretary with discretion
to prescribe a presumptive period based upon, among other things, a
review of credible medical or scientific evidence. As stated in the
interim final rule, the Secretary is extending the presumptive period
to December 31, 2016, in order to provide more time for scientific and
medical research regarding diseases and illnesses that may be related
to service in the Southwest Asia Theater of
[[Page 63227]]
Operations. Based on the current lack of scientific certainty
surrounding the cause of illnesses suffered by Gulf War veterans, the
Secretary's decision to extend the presumption period until December
31, 2016, is within the discretion given to him by section 1117.
Extension of the Expiration Date to 2018 or 2050
Two commenters thanked VA for extending the time frame to December
31, 2016, but asserted that since VA publicly announced the intention
to draft a rule extending the presumptive date by an additional 7
years, VA should follow through by extending the date to December 31,
2018, versus December 31, 2016, in the final rule. One of these
comments stated that a VA Web page describing that VA intended to
extend the date through 2018 remained publicized and called this
``overt duplicity'' on the part of VA. The Web page information
referred to by the commenter is not publicized at this time and was
removed as soon as the error was noted. It appears the date publicized
was mistaken and should have stated December 31, 2016. One commenter
supported extending the time frame to 2050. The two previously
established time frame extensions implemented by VA for medically
unexplained chronic multi-symptom illnesses and undiagnosed illnesses
that appeared in Gulf War veterans were 5-year periods. VA determined
that it was appropriate to extend the time frame again by 5 years
consistent with the extensions that have occurred in the past.
Therefore, we make no change based on these comments.
Need for Further Research
Some commenters conveyed disagreement with the apparent premise of
scientific studies that only those serving in certain areas during the
Gulf War era are afflicted with Gulf War Syndrome and prone to adverse
effects and toxins of war because this premise is based on ``a flawed
definition set by Congress in 1994.'' Commenters in this group assert
that ill Gulf War era veterans, including those both deployed and non-
deployed, should be considered equally in regards to researching
causative agents and treatments. Commenters asserted that non-deployed
veterans are excluded from participation in the Gulf War Illness
Registry and consideration of all Gulf War veterans, those deployed and
non-deployed, would narrow the field of possible main causes down to
causative agents and treatments, vaccines, immunizations, and
infectious communicable diseases/biological weapons. Some commenters
asserted the need for more time for investigation, medical and
scientific research, and testing regarding undiagnosed and medically
unexplained chronic multi-symptom illnesses. Others asserted the need
for enhanced medical care for Gulf War veterans, testing for possible
effects on offspring, and the need for VA to examine Gulf War veterans
before VA makes a decision on an extension deadline.
VA recognizes the need for further investigation and scientific and
medical research until more consistent evidence is available to the
Secretary. This rulemaking finalizes an extension of the time frame in
which manifestations of undiagnosed illnesses and medically unexplained
chronic multi-symptom illnesses must appear in Gulf War veterans to be
presumed as service-connected diseases to allow time for further
research. To the extent the comments call for specific types of
research, they are outside the scope of this rulemaking. We, therefore,
make no change based on these comments.
Technical Amendment
On September 29, 2010, VA published AN24, ``Presumptions of Service
Connection for Persian Gulf Service,'' in the Federal Register at 75 FR
59968 and replaced the title ``Sec. 3.317 Compensation for certain
disabilities due to undiagnosed illnesses'' with ``Sec. 3.317
Compensation for certain disabilities occurring in Persian Gulf
veterans.'' Subsequently, on October 7, 2010, VA published an amendment
to the final rule which removed a provision reserving to the Secretary
the authority for certain determinations and, inadvertently, also
switched the title back to its original form. Therefore, in this final
rule, VA makes a technical correction to replace the current title with
``Sec. 3.317 Compensation for certain disabilities occurring in
Persian Gulf veterans.''
Based on the rationale set forth in the interim final rule and this
document, we are adopting the provisions of the interim final rule as a
final rule with no changes other than correction of the title of Sec.
3.317.
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 rule 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. This rule will not affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this rule is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
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 effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), 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
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this final rule have been examined and it has been
determined not to be 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 year. This rule will have no such effect
[[Page 63228]]
on State, local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program number and title
for this rule is 64.109, Veterans Compensation for Service-Connected
Disability.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, approved this document on October 4, 2012,
for publication.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Dated: October 10, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
Accordingly, the interim final rule amending 38 CFR part 3 that was
published at 76 FR 81834 on December 29, 2011, is adopted as a final
rule with the following change:
PART 3--ADJUDICATION
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. 3.317, revise the section heading to read as follows:
Sec. 3.317 Compensation for certain disabilities occurring in Persian
Gulf veterans.
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[FR Doc. 2012-25353 Filed 10-15-12; 8:45 am]
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