[Federal Register Volume 59, Number 110 (Thursday, June 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14124]


[[Page Unknown]]

[Federal Register: June 9, 1994]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AG73

 

Disease Associated With Exposure to Certain Herbicide Agents 
(Multiple Myeloma and Respiratory Cancers)

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) has amended its 
adjudication regulations concerning presumptive service connection for 
certain diseases even though there is no record of the disease during 
service. This amendment is necessary to implement a decision of the 
Secretary of Veterans Affairs under the authority granted by the Agent 
Orange Act of 1991 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 multiple myeloma and 
respiratory cancers. The intended effect of this amendment is to 
establish presumptive service connection for those conditions based on 
herbicide exposure.

EFFECTIVE DATE: This amendment is effective on June 9, 1994, as 
provided by Public Law 102-4.

FOR FURTHER INFORMATION CONTACT: Donald England, Chief, Regulations 
Staff, Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 233-3005.

SUPPLEMENTARY INFORMATION: VA published a proposal to amend 38 CFR 
3.307(a) and 3.309(e) to establish presumptive service connection for 
multiple myeloma and respiratory cancers based on exposure to 
herbicides in the Federal Register of February 3, 1994 (59 FR 5161-63). 
As explained in that notice, these presumptions of service connection, 
like various others, are rebuttable under 38 U.S.C. 1113 by affirmative 
evidence to the contrary; evidence establishing an intercurrent, post-
service cause of the disease; or evidence establishing that the disease 
is due to the veteran's own willful misconduct. Interested persons were 
invited to submit written comments, suggestions or objections 
concerning the proposal on or before March 7, 1994. We received one 
comment from the General Counsel and Director of Litigation for the 
National Veterans Legal Services Project.
    The commenter suggested changes not only to the proposed rule 
concerning multiple myeloma and respiratory cancers published on 
February 3, 1994, but also to the final rule effective February 3, 
1994, that established presumptive service connection for Hodgkin's 
disease and porphyria cutanea tarda (See 59 FR 5106-07) based on 
exposure to herbicides, to the final rule published on October 15, 
1991, that established service connection for soft-tissue sarcoma (See 
56 FR 51651-53) based on exposure to herbicides containing dioxin, and 
to the final rule published on October 21, 1991, that extended the 
period during which chloracne must appear following exposure to a 
herbicide containing dioxin in order to establish service connection 
(See 56 FR 52473-74).
    To the extent that these comments pertain to rulemaking other than 
the proposed rule concerning multiple myeloma and respiratory cancers 
published on February 3, 1994, the comments are beyond the scope of the 
current rulemaking.
    The commenter stated that the proposal concerning multiple myeloma 
and respiratory cancers is in error since it specifies an effective 
date that is not consistent with the Final Stipulation and Order 
entered in Nehmer v. United States Veterans Administration, C.A. No. C-
86-6160 (TEH) (N.D. Cal.), and the procedural instructions contained in 
Circular 21-94-1, Processing of Claims Based on Exposure to Herbicide 
Agents (February 15, 1994). The commenter suggested that the final rule 
should specify an effective date for the payment of benefits that 
conforms with the Nehmer stipulation.
    VA does not concur. 38 U.S.C. 1116(c)(2), which was added by the 
Agent Orange Act of 1991, Public Law 102-4, 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 be 
effective on the date of issuance, i.e., the date the final rule is 
published in the Federal Register. The effective date for this rule 
conforms to that statutory mandate.
    Further, the commenter recognized that the effective date of this 
regulation and the date of entitlement in an individual claim for 
benefits are not synonymous. In fact, there is a specific regulatory 
framework that governs the assignment of the date of entitlement (See 
38 CFR 3.400 through 3.404). In addition, the Final Stipulation and 
Order entered in the Nehmer case contains provisions governing 
effective dates of entitlement applicable to certain groups of 
claimants. VA is bound by these provisions. This notice merely 
specifies the effective date of the regulatory amendment and does not 
purport to modify provisions governing effective dates of entitlement 
contained in regulations or in the Nehmer stipulation.
    Under the Nehmer stipulation, when the Secretary of Veterans 
Affairs issues regulations under Public Law 102-4 establishing a 
presumption of service connection for a disease associated with 
herbicide exposure, VA will review herbicide-exposure claims based on 
disability or death resulting from that disease which were: (1) Denied 
under regulations voided by the court in Nehmer and never finally 
decided under a valid regulation, or, (2) filed after the date of the 
court's decision and before issuance of the new regulations. Where 
benefits are awarded under such reviews, the effective date of 
entitlement will be based on the later of the date of receipt of the 
claim or the date on which disability or death occurred, subject to the 
provisions of 38 U.S.C. 5110 (b)(1) and (d)(1) allowing earlier 
effective dates in some cases where claims are filed within one year of 
service discharge or death. Under the stipulation, the date of 
entitlement may be based on the date of claim, if otherwise 
appropriate, without regard to whether the claim was filed prior to 
September 25, 1985, the effective date of the voided regulations, if 
the claim was denied under those regulations.
    As to the suggestion that the regulation restate the provisions 
governing effective dates of entitlement found in the Nehmer 
stipulation, that stipulation applies to a specific class of claimants 
whose claims for benefits based on exposure to dioxin were denied on or 
after September 25, 1985, or who have claims pending at the time of 
issuance of regulations under Public Law 102-4. This regulation will 
apply to a broader class of veterans and dependents, including those 
whose claims were denied prior to September 25, 1985, and those who 
file claims in the future. Individuals will continue to have specific 
rights under the terms of the Nehmer stipulation and it is not 
necessary to include them in a regulation of general applicability. To 
the extent that class counsel believes that class members are not 
sufficiently aware of their rights under the stipulation, the 
stipulation provides class counsel with a means to contact class 
members concerning their rights.
    For those reasons, as well as the fact that the effective date 
established by this rule is in accordance with 38 U.S.C. 1116(c)(2), VA 
finds that it is neither necessary nor appropriate to include 
requirements affecting a specific class of claimants in a rule which is 
for broader application.
    VA appreciates the comment submitted in response to the proposed 
rule which is now adopted without change.
    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 (RFA), 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 sections 603 and 604.
    These regulations have been reviewed by the Office of Management 
and Budget under E.O. 12866.
    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, Handicapped, Health 
care, Pensions, Veterans.

    Approved: April 28, 1994.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 3 is amended 
as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A, continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. In Sec. 3.307, paragraph (a)(6)(ii) is revised to read as 
follows:


Sec. 3.307  Presumptive service connection for chronic, tropical or 
prisoner-of-war related disease, or disease associated with exposure to 
certain herbicide agents; wartime and service on or after January 1, 
1947.

    (a) * * *
    (6) * * *
    (ii) The diseases listed at Sec. 3.309(e) shall have become 
manifest to a degree of 10 percent or more at any time after service, 
except that chloracne or other acneform disease consistent with 
chloracne and porphyria cutanea tarda shall have become manifest to a 
degree of 10 percent or more within a year, and respiratory cancers 
within 30 years, after the last date on which the veteran was exposed 
to an herbicide agent during active military, naval, or air service.
* * * * *


Sec. 3.309  [Amended]

    3. In Sec. 3.309(e) in the listing of diseases, after the words 
``Hodgkin's disease'' and before the words ``Non-Hodgkin's lymphoma'', 
add the words ``Multiple myeloma''; and after the words ``Porphyria 
cutanea tarda'' and before the words ``Soft-tissue sarcoma (other than 
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma)'', add 
the words ``Respiratory cancers (cancer of the lung, bronchus, larynx, 
or trachea)''.

[FR Doc. 94-14124 Filed 6-7-94; 12:16 pm]
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