[Federal Register Volume 59, Number 173 (Thursday, September 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21854]


[[Page Unknown]]

[Federal Register: September 8, 1994]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3
RIN 2900-AH04

 

Disease Subject to Presumptive Service Connection (Radiation Risk 
Activity)

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its adjudication regulations concerning diseases presumed to be the 
result of exposure to ionizing radiation. This amendment is necessary 
to implement a determination by the Secretary of Veterans Affairs that 
the term ``radiation risk activity'' should include the onsite 
participation in a test involving the atmospheric detonation of a 
nuclear device by any government allied with the United States during 
World War II. The intended effect of this amendment is to extend the 
presumption of service connection for radiogenic disabilities to those 
veterans exposed to radiation due to their onsite participation in 
atmospheric nuclear tests conducted by allied governments.

DATES: Comments must be received on or before November 7, 1994. 
Comments will be available for public inspection until November 17, 
1994.

ADDRESSES: Interested persons are invited to submit written comments, 
suggestions, or objections regarding this amendment to Secretary of 
Veterans Affairs (271A), Department of Veterans Affairs, 810 Vermont 
Avenue, NW., Washington, DC 20420. All written comments received will 
be available for public inspection only in the Veterans Services Unit, 
Room 119, at the above address between the hours of 8 a.m. and 4:30 
p.m., Monday through Friday (except holidays), until November 17, 1994.

FOR FURTHER INFORMATION CONTACT:
Lorna Weston, Consultant, Regulations Staff, Compensation and Pension 
Service, Veterans Benefits Administration, 810 Vermont Avenue, NW., 
Washington, DC 20420, telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: The Radiation-Exposed Veterans Compensation 
Act of 1988, Pub. L. 100-321, which was enacted May 20, 1988, 
established a presumption of service connection for specific radiogenic 
diseases arising in veterans who had been present at the occupation of 
Hiroshima or Nagasaki, who had potentially been exposed to ionizing 
radiation as prisoners of war in Japan during World War II, or who had 
participated onsite in a test involving the atmospheric detonation of a 
nuclear device.
    On June 21, 1989, VA published regulations at 38 CFR 3.309 to 
implement the provisions of Pub. L. 100-321. Under these regulations, 
if a veteran who was present at one of the specified sites during the 
appropriate time subsequently develops one of the specified radiogenic 
diseases, that condition is presumed to have resulted from the 
veteran's in-service exposure to ionizing radiation. In formulating 
these regulations, VA relied on the introductory language of the 
statute, which indicated that it was to apply to veterans ``who 
participated in atmospheric or underwater nuclear tests as part of the 
United States nuclear weapons testing program.'' The effect of that 
rulemaking was to exclude those veterans exposed to ionizing radiation 
during atmospheric nuclear testing by governments allied with the 
United States during World War II from the presumption of service 
connection.
    VA is aware that veterans who were involved in allied atmospheric 
nuclear tests as part of their active military duty are at the same 
risk of developing a radiogenic disease as veterans who were present at 
atmospheric tests conducted by the United States. Under current 
regulations, however, these veterans are not entitled to presumptive 
service connection for the radiogenic conditions listed at 38 CFR 
3.309(d)(2). In the judgement of the Secretary of Veterans Affairs, it 
is only equitable that VA provide service connection for radiogenic 
diseases on the same presumptive basis for these veterans as for 
veterans exposed to ionizing radiation due to atmospheric nuclear 
detonations conducted as a part of the U.S. testing program.
    Therefore, under the broad general rulemaking authority granted the 
Secretary under the provisions of 38 U.S.C. 501(a), and the authority 
to compensate for service-connected disabilities under 38 U.S.C. 1110 
and 1131, we are amending 38 CFR 3.309(d) to extend the presumption 
that radiogenic diseases are the result of in-service exposure to 
ionizing radiation to veterans who were present at atmospheric nuclear 
tests conducted by any government allied with the United States during 
World War II.
    We propose to make this amendment effective the date of publication 
of the final rule.
    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. 606(b), this amendment is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

    The Catalog of Federal Domestic Assistance program numbers are 
64.101, 64.109 and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Handicapped, Health 
care, Pensions, Veterans.

    Approved: July 7, 1994.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR Part 3 is amended 
to read as follows:

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.


Sec. 3.309  [Amended]

    2. In Sec. 3.309, paragraph (d)(3)(ii)(A) is amended by removing 
the period and adding in its place, the words ``or by the government of 
any nation allied with the United States during World War II.''
    3. In Sec. 3.309, paragraph (d)(3)(v) is amended by removing the 
word ``The'' at the beginning of the sentence, and inserting in its 
place the words ``For tests conducted by the United States, the''.
    4. The authority citation following Sec. 3.309(d)(3)(vii)(D) is 
revised to read as follows:

(Authority: 38 U.S.C. 1110; 1112; 1131).

[FR Doc. 94-21854 Filed 9-7-94; 8:45 am]
BILLING CODE 8320-01-M