[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Rules and Regulations]
[Pages 31250-31252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14480]



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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: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
adjudication regulations concerning diseases presumed to be the result 
of exposure to ionizing radiation. This amendment is necessary to 
implement Public Law 103-446, the Veterans' Benefits Improvements Act, 
which provides that the term ``radiation risk activity'' includes the 
onsite participation in a test involving the atmospheric detonation of 
a nuclear device by the United States and by other governments. The 
intended effect of this amendment is to extend the presumption of 
service connection for radiogenic disabilities to those veterans 
exposed to radiation during active military service due to onsite 
participation in atmospheric nuclear tests conducted by nations other 
than the United States.

EFFECTIVE DATE: This amendment is effective November 2, 1994, the date 
of enactment of Public Law 103-446.

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, Public Law 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. 

[[Page 31251]]

    On June 21, 1989, VA published regulations at 38 CFR 3.309 to 
implement the provisions of Pub. L. 100-321. The introductory language 
of the statute had 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.'' In formulating the 
regulations, therefore, VA defined radiation risk activity as including 
onsite participation in a test involving the atmospheric detonation of 
a nuclear device by the United States. The effect of that rulemaking 
was to exclude those veterans exposed to ionizing radiation during 
atmospheric nuclear testing by governments other than the United States 
from the presumption of service connection.
    The Secretary determined that this rule should be revised to allow 
consideration of service connection 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. Accordingly, on September 8, 1994, VA published a proposal in 
the Federal Register (59 FR 46379-46380) to amend its adjudication 
regulations at 38 CFR 3.309(d)(3) to extend the presumption that 
specified 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. Interested persons were invited to submit written comments, 
suggestions or objections on or before November 7, 1994.
    On November 2, 1994, the President signed Pub. L. 103-446, the 
Veterans' Benefits Improvements Act. Section 501(a) of that law 
clarified Congressional intent on this issue by amending 38 U.S.C. 
1112(c)(3)(B) to define the term ``radiation-risk activity'' to include 
onsite participation in a test involving the atmospheric detonation of 
a nuclear device ``without regard to whether the nation conducting the 
test was the United States or another nation.''
    We received two comments in response to the proposed rule published 
September 8, 1994. Both comments suggested that the amendment should 
apply to any nuclear tests to which military personnel were assigned 
and that the phrases ``any government allied with the United States 
during World War II'' and ``atmospheric nuclear tests conducted by 
allied governments'' are therefore too restrictive.
    We not only agree, but the suggestion is consistent with section 
501 of Public Law 103-446, the Veterans' Benefits Improvements Act of 
1994. We have revised the regulation accordingly.
    One comment expressed concern that literal interpretation of the 
phrase ``onsite participation'' could disqualify those veterans 
involved in aerial sampling, ground support and decontamination 
activities and suggested we expand the term ``atmospheric nuclear 
test'' to include ``test activities'' without requiring that the 
veteran had literally been present at the test site itself.
    The term ``onsite participation'' is a statutory term (See 38 
U.S.C. 1112 (c)(3)(B)(i)) that VA has interpreted to mean presence at a 
test site, performance of official military duties in direct support of 
the nuclear test during the operational period of the test itself, and 
duties performed during the six-month period following a test in 
connection with test-related projects, including decontamination 
activities. (See 38 CFR 3.309(d)(3)(iii)) This definition clearly 
precludes the possibility that veterans engaged in aerial sampling, 
ground support or decontamination activities would be ineligible for 
consideration under this regulation. In our judgment, that definition 
of the term ``onsite participation'' is sufficiently broad to assure 
inclusion of all veterans engaged in test activities including support, 
clean up, decontamination and follow-up duties, and no change in the 
current language of the regulation is warranted.
    One comment stated that dosimeter records are not available for all 
tests and suggested that we revise the regulation to include an 
alternate method for reconstructing radiation exposure.
    The statute and this implementing regulation establish the 
presumption that specific radiogenic diseases arising in veterans who 
participated in specific radiation risk activities are service-
connected regardless of the amount of radiation to which the veteran 
was exposed. For this reason, inclusion of dose reconstruction methods 
in this regulation would be both unnecessary and inappropriate.
    One comment recommended that we add language to the regulation 
setting out evidentiary requirements for establishing a veteran's 
participation in a test, to include review of military orders, unit 
history and the veteran's affidavit supported by adequate lay 
testimony.
    Neither 38 U.S.C. 1112(c) nor 38 CFR 3.309(d) set forth specific 
evidentiary requirements for establishing a veteran's presence at 
Hiroshima, Nagasaki or an atmospheric nuclear test. Eligibility for VA 
benefits is determined based on the preponderance of evidence. Any 
evidence that the veteran offers, whether it is documentary, 
testimonial or in some other form, is included in the record and 
considered (See 38 CFR 3.103(d)) and a veteran's statement is clearly 
evidence which VA must consider along with service records and all 
other evidence of record. In addition, by regulation VA must resolve 
reasonable doubt as to service origin or any other point in favor of 
the claimant. (See 38 CFR 3.102.) In our judgment, these provisions 
adequately address the concerns expressed in the comment and there is 
therefore no need to add language to this regulation setting forth 
specific evidentiary requirements.
    VA appreciates both comments received in response to the proposed 
regulatory amendment, which is now adopted with changes as noted above. 
The effective date of the amendment is November 2, 1994, the date 
Public Law 103-446 was enacted.
    The Secretary certifies that this final 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 amendment will directly affect VA beneficiaries but will not 
directly affect small business. Therefore, pursuant to 5 U.S.C. 606(b), 
this final rule is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.
    This regulatory action has been reviewed by the Office of 
Management and Budget under Executive Order 12866.

    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, Health care, 
Individuals with disabilities, Pensions, Veterans.
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. 

[[Page 31252]]



Sec. 3.309  Disease subject to presumptive service connection. 
[Amended]

    2. In Sec. 3.309, paragraph (d)(3)(ii)(A) is amended by removing 
the words ``by the United States''.
    3. In Sec. 3.309, paragraph (d)(3)(v) is amended by removing the 
word ``The'' at the beginning of the sentence, and adding 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. 95-14480 Filed 6-13-95; 8:45 am]
BILLING CODE 8320-01-P